State And International Law

Introduction

Secession is the separation of part of the territory of an existing state so that the territory can become a new state. It differs from dissolution, which is when a state ceases to exist entirely and its territory may be reorganized into one or more new states.

Secession is controversial under international law and is often rejected by states. When part of a state attempts to secede, it is typically met with opposition from the existing state which views it as a threat to its territorial integrity. There are few examples of successful secessions that have been accepted by the international community. States generally argue that secession should only occur with the consent of the existing state.

The right to self-determination is often raised in arguments for secession. However, self-determination is generally interpreted as a right to internal self-determination (meaningful political, economic and cultural participation within one’s existing state) rather than external self-determination (the right to separate and form a new state). Overall, secession remains a complex issue in international law and global politics.

Secession and State Practice

The international community often disfavors and rejects attempts at secession from existing states. There are several key reasons why secessionist movements face difficulty achieving full statehood and recognition:

• Use of force - Attempts to unilaterally secede through force, rather than mutual agreement, are rarely accepted by the international community. The use of violence or armed conflict to separate goes against norms of territorial integrity.
• Lack of independence - Secessionist regions that are heavily influenced by another state and not truly self-governing may struggle to be recognized as fully sovereign. Their independence can be called into question.
• De facto regimes - Secessionist entities that control territory without international recognition are considered de facto regimes. They lack legitimacy until granted recognition.

A prominent example is Kosovo, which unilaterally declared independence from Serbia in 2008. Kosovo had been an autonomous province of Serbia but sought greater self-determination. However, Kosovo’s independence has only been recognized by around half of UN member states. Serbia and allies like Russia still consider Kosovo part of Serbia’s sovereign territory. The case illustrates the challenging path secessionist entities must navigate to achieve widespread recognition as independent states.

Secession and Recognition

International law has generally discouraged the practice of secession, as it threatens the stability and territorial integrity of existing states. The 1970 Friendly Relations Declaration of the UN General Assembly reinforced the view that secession should not be endorsed as a means of self-determination when an existing state respects the equal rights and self-determination of peoples within its territory.

However, there are some limited circumstances where an attempt at secession may implicate international law. This could occur when an armed insurgency within a state seeks independence and international recognition as a new sovereign state. Such a scenario threatens international peace and security, especially if another state intervenes militarily to support the separatist movement.

The issue of recognition plays a crucial role for entities attempting to secede. According to the declaratory view, recognition by other states helps consolidate statehood in international law but is not essential. The constitutive view maintains that statehood depends on formal recognition. For a secessionist entity, obtaining recognition can determine its ability to participate in international relations and organizations. Recognition also affects the extension of sovereign immunity and potential assistance from financial institutions. Overall, the prospects for a successful secession greatly depend on achieving substantial international recognition as well as demonstrating effective control over claimed territory.

Recognition of States

Recognition of states refers to formal acknowledgment by existing sovereign states that another entity satisfies the criteria for statehood and merits acceptance into the international community. Recognition serves several important purposes under international law (IL).

The declaratory and constitutive views represent two opposing perspectives on recognition. The declaratory view holds that an entity achieves statehood once it meets the objective criteria, regardless of formal recognition. Thus recognition merely declares an existing state of affairs. The constitutive view contends that recognition is legally required for statehood. An entity cannot become a true state without recognition by other states.

Why does recognition matter? It determines an new state’s ability to fully participate in international relations. Key benefits of widespread recognition include:

• Joining the United Nations and other international organizations like the World Trade Organization

• Receiving assistance from institutions like the International Monetary Fund and World Bank

• Enjoying sovereign immunity in foreign courts

• Concluding treaties with existing states

• Exchanging diplomatic representatives

In essence, recognition provides legitimacy and empowerment to engage with the global community on equal footing. Non-recognition, conversely, impedes meaningful participation. States therefore carefully consider whether to recognize new claimants to statehood. The decision involves reputational risks and implicitly endorses or rejects the circumstances of the entity’s birth.

State Responsibility

State responsibility is a fundamental principle of international law that governs the obligations of states and the consequences when states breach an international legal obligation. The rules of state responsibility have important relationships with other areas of international law, such as the law of treaties.

The law of state responsibility helps characterize when a state is responsible for an internationally wrongful act. For state responsibility to arise, there must exist an international legal obligation in force between two states. Then, there must be an act or omission by the responsible state that violates this obligation, and this act or omission must be attributable to the state based on the conduct of state organs or agents. Finally, the wrongful act must have caused loss or damage.

The relationship between state responsibility and the law of treaties can be seen in cases like the Rainbow Warrior Arbitration between France and New Zealand in 1990. The rules help determine whether a state’s violation of a treaty obligation gives rise to state responsibility. Similarly, the International Law Commission’s draft articles on state responsibility were applied in the Arbitration Commission on Yugoslavia.

The specific characteristics of state responsibility depend on several factors. These include the source and content of the international obligation, whether the conduct was attributable to the state, and the resulting injury that requires remedying. The principles of state responsibility aim to hold states accountable for breaches while resolving disputes between states.

Consequences of Internationally Wrongful Acts

The consequences of an internationally wrongful act are outlined in the Articles on State Responsibility. The state responsible for the internationally wrongful act is under specific obligations:

Obligation to Cease Wrongful Acts

The basic principle is that the state responsible for the internationally wrongful act is under an obligation to cease that act. This was confirmed by the Tribunal in the Rainbow Warrior Arbitration between France and New Zealand in 1990, which held that France was under an obligation to cease its breach of New Zealand’s sovereignty.

Reparations

Under Article 31 of the Articles on State Responsibility, the responsible state is under an obligation to make full reparation for the injury caused by the internationally wrongful act. This includes any damage, whether material or moral, caused by the act. The reparation should wipe out all consequences of the illegal act.

The Rainbow Warrior Arbitration

The Rainbow Warrior Arbitration clarified the scope of reparations required. The Arbitral Tribunal held that France was required to make reparation for all direct and immediate damage caused to New Zealand by France’s internationally wrongful acts. This included material damage to the ship, non-material damage to New Zealand’s sovereignty, and additional costs incurred by New Zealand.

Diplomatic Protection

Diplomatic protection refers to the link between individuals and their states regarding rights and duties. Under international law, states have a duty to protect their nationals abroad. When another state harms or injures a state’s nationals, the home state may take diplomatic action on behalf of its citizens against the foreign state responsible.

The principle of diplomatic protection developed to address how states treat foreign nationals within their borders. A state is obligated to shield its citizens and may raise their grievances against other states. Diplomatic protection broadly includes consular assistance, negotiation, mediation, legal and arbitral proceedings, reprisals, retorsion, breaking diplomatic ties, and economic pressure.

Some key aspects of diplomatic protection include:

• Nationality forms the connection between a person and their state regarding specific privileges and responsibilities.

• States have an obligation to safeguard their nationals and may adopt their claims against other states.

• If another state improperly treats a state’s nationals, the home state can pursue diplomatic action against the foreign state on behalf of its people.

• Actions under diplomatic protection include negotiation, litigation, economic sanctions, severing diplomatic ties, and other peaceful measures.

• The principle aims to hold states accountable for mistreating foreign nationals and provide redress for injuries.

• Diplomatic protection procedures give states legal standing to raise claims on behalf of aggrieved individuals against offending states.

So in essence, diplomatic protection is a critical way that states protect their citizens abroad and pursue their rights under international law. It offers important avenues for redress when foreign states harm another state’s nationals.

Self-Determination

Under international law, the principle of self-determination is a right to internal self-determination that focuses on meaningful participation in one’s existing state. This is in contrast to an external right to self-determination, which could justify unilateral secession.

The right to internal self-determination under the UN Charter emphasizes that populations within existing states should have meaningful representation and participation in the political, economic, social and cultural aspects of their country. This allows diverse groups and peoples to have a voice in their governance and trajectory.

External self-determination, on the other hand, refers to independence or secession to form a new sovereign state. Most legal scholars argue this is not an automatic right under international law unless extreme conditions are met, such as colonial domination or subjugation of peoples.

Overall, the principle of self-determination is focused on ensuring representation within states, not a right to unilateral secession or independence. Peoples do have a right to meaningful participation in the existing state they inhabit. However, declaring independence or separating is only permitted in extraordinary circumstances, given the importance of stability, sovereignty and territorial integrity to the international legal order.

Secession Controversies

The international legal status of secession is controversial. There are heated debates around whether groups should have a right to unilateral secession under international law.

On the one hand, secessionists argue that groups which have been marginalized or persecuted should have a right to form their own independent state. They contend that secession is justified when a central government systematically discriminates against a region or denies its people meaningful representation. Examples cited include Kosovo’s secession from Serbia, South Sudan’s secession from Sudan, and Catalonia or Basque’s bids for independence from Spain.

Proponents of a legal right to secession under certain conditions argue that it can be a legitimate act of self-determination when internal autonomy is no longer possible within an existing state. They point to moral grounds for secession as an extreme measure to rectify grave injustices and protect human rights. Some also argue that consensual separation may at times lead to more stable outcomes than forcing groups to remain part of a country against their will.

On the other hand, opponents argue that there is no right to unilateral secession under international law as it exists today. They contend that allowing secession would undermine state sovereignty and territorial integrity, which are bedrock principles of the international legal order. There are concerns that it could lead to endless fragmentation into smaller and smaller states, fostering instability and conflict. It could also potentially encourage separatism for arbitrary reasons not based on just cause.

Critics of secession argue that issues of representation and discrimination should be resolved through internal self-determination first. They say that secession should only be considered in extreme circumstances as a last resort, such as where a people is denied internal self-determination and subject to extreme and unremedied human rights abuses. Even in those cases, negotiations between both sides are preferable.

There are good-faith ethical and legal arguments on both sides of this complex issue. The debates weigh concepts like self-determination, human rights protections, democratic representation, territorial integrity, and international stability. There are no easy or definitive answers, which is why secession remains controversial under international law. The way specific cases are resolved often comes down to political factors and negotiations between parties rather than abstract legal principles.

Conclusion

Secession is a complex issue in international law. To summarize the key points:

• Secession refers to when part of an existing state’s territory separates to become a new state. This differs from dissolution, when a state ceases to exist entirely.
• There is no explicit right to secession under international law. The UN Charter upholds self-determination, but this refers to internal self-determination through participation in governance, not external self-determination through secession.
• Secession is generally discouraged by the international community, for reasons such as use of force or lack of true independence. De facto regimes may control territory without being recognized as states.
• Issues around secession and recognition implicate international law regarding establishment of armed insurgencies, threats to peace, and military intervention by other states.
• Recognition is important for participation in international relations and organizations. States weigh risks around recognizing or not recognizing seceded entities.
• State responsibility principles establish that states are obligated to cease unlawful acts and provide reparations for injuries caused by such acts. This applies to acts related to secession and independence struggles.
• Overall, secession remains a controversial and complex matter in international law, with many competing principles and perspectives involved.