The International Court of Justice’sKosovoCase: Assessing the Current State of International Legal Opinion on Remedial Secession

Abstract

SummaryIn light of the global prevalence of secessionist movements, some have proposed “remedial secession” as a last resort solution where a “people” is either denied internal self-determination or is faced with massive human rights violations by a repressive regime. While lack of state practice largely confined this concept to academic circles through the 1990s and much of the 2000s, remedial secession received renewed international legal attention in the proceedings concerning the International Court of Justice’s (ICJ) 2008 advisory opinion in the case Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo(Kosovo case). In light of support for remedial secession expressed in the submissions of eleven states, as well as its apparent endorsement in the separate opinions of two ICJ judges, advocates of remedial secession may plausibly argue that the soft law status of the concept has been strengthened and perhaps even that it is in the process of emerging as a regional customary norm for those states that supported it. However, the impact of the Kosovo case on solidifying the legal status of remedial secession should not be overstated, as opponents of the concept may point to a number of contrary indicators that also emerged from the formal discourse surrounding the case.

Secession and Self-Determination

“…The right to self-determination includes "internal self-determination" and "external selfdetermination." External self-determination is primarily about achieving an independent state, if necessary through secession (Meester 2010), but can also mean the association with another state. Internal self-determination excludes secession and is about enabling people to effectively participate in the political and constitutional decision-making processes of the state where they live and to effectively enjoy human rights (Meester 2010).…”

“…External self-determination is primarily about achieving an independent state, if necessary through secession (Meester 2010), but can also mean the association with another state. Internal self-determination excludes secession and is about enabling people to effectively participate in the political and constitutional decision-making processes of the state where they live and to effectively enjoy human rights (Meester 2010). This can be achieved through various forms of participation on governance, including autonomy, local self-government, decentralization, and federalization (Weller 2009).…”

“…The "safeguard clause" implies that a state represents the whole of the people of its territory without distinction of any kind and complies with the principle of self-determination in respect of all its people and is entitled to the protection of its territorial integrity. A state that does not conform to this standard would forfeit its right to territorial integrity, and the ethnic group would be entitled to secession as a measure of last resort (Meester 2010).…”

“…On the question if the people of the Aaland Island had the right to separate from Finland to join Sweden, the Commission of Jurists appointed by the League of Nations referred to the principle of self-determination but denied that it was a legal principle and that there was a right of national groups to separate from a state (Crawford 2006). However, the Commission of Rapporteurs clarified that the principle of self-determination could be invoked as a last resort "when the State lacks either the will or the power to enact and apply just and effective guarantees" for minority rights (Meester 2010).…”

“…While the UN Declaration on the Rights of Indigenous Peoples (2007) recognizes a right to self-determination for indigenous peoples, it limits it explicitly to a right to autonomy or self-government in matters relating to their internal and local affairs. Although a number of states supported the idea of "remedial secession" in their submissions to the ICJ for Advisory Opinion on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (2010), these were too few to reflect a general international opinion or even customary international law (Meester 2010). In fact, state practice indicates an attitude against secessions outside colonial and foreign occupation contexts for fear of destabilizing the international system and causing violent conflicts (Bereketeab 2014;Griffiths 2014).…”