Theodore Christakis

in International Law

ISBN: 9780199796953
Published online March 2012 | | DOI:

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The term secession designates the unilateral withdrawal from a state of part of its territory and population with the will to create a new state. It is commonly admitted today that, outside the context of decolonization and situations of military occupation, there is no “right” to create an independent state. “External self-determination” was granted to colonized peoples only on the basis of the “salt-water” test. But this does not mean that secession is prohibited. The real criterion for the emergence of a new state, outside the colonial context, is the principle of effectiveness: if a secessionist entity succeeds in fulfilling the conditions of statehood, a new state is born. This traditional view, according to which “secession is not a question of law, but a question of fact,” leads to an impression of perfect “legal neutrality” on the matter of secession. This could be misleading for the following reasons. First, in case of violation of peremptory norms (e.g., external aggression), international law denies the quality of “state” to a secessionist entity, notwithstanding its “effectiveness.” The maxim ex iniuria ius nor oritur defines the external limits of acceptance of the principle of effectiveness. Second, even though secession is not “prohibited,” international law disfavors it and creates a presumption against its effectiveness and in favor of the territorial integrity of the parent state. Indeed, the final consent or, at least, the “resignation” of the parent state and the abandonment of its efforts to reassert its authority seem crucial in permitting the secessionist entity to “normalize” its situation by demonstrating the “ultimate success” of the secession. The traditional reluctance (with the exception of Kosovo) of third states to recognize such entities as states pending a strong opposition of the old sovereign authority, leads to the existence of many “de facto” unrecognized entities, which is problematic for international law. Third, it has often been suggested that, even though there is no “general” right to secession outside the colonial context, there is nonetheless a “qualified” right to “remedial secession” in case of gross violations of human rights of individuals belonging to a specific group. Both legal scholars and national states remain strongly opposed concerning the existence of such a right. Finally, the principle of uti possidetis juris also interacts strongly with the principle of effectiveness. Its applicability outside the colonial context has also created considerable debate in international legal scholarship.

Article.  13460 words. 

Subjects: International Law ; International Courts and Tribunals ; Private International Law and Conflict of Laws ; Public International Law

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