SECESSION IN INTERNATIONAL LAW

Xavier Pons Rafols

Tenured Professor of Public International Law
Universitat de Barcelona

The phenomenon of secession by virtue of which parts of a State’s territory become

independent States is not new. It has gone through different phases throughout history. Apart
from the processes experienced at the end of the Cold War by the end of last century, tension
around pro-independence movements is back on the agenda of several democratic EU
Member States. Scotland and Catalonia are two clear examples but not the only ones. The next
steps in these two territories might trigger tensions in other EU Member States as well. In
democratic environments, these political tensions should be dealt with in a pacific and
democratic way, ensuring full observance of the national legal systems and the political and
territorial organization set forth therein. Resorting to the national legal systems is also the
original answer given by international law.

From the point of view of international law, unilateral secession is only accepted in the context
of decolonization and the right to self-determination of the peoples. The Advisory Board for
National Transition created by the Government of Catalonia recognized this fact in its Report
No. 4. However, it should be noted that in strict legal terms the Catalan case does not fall
under the definition of secession inasmuch as the territory under colonial domination should
have a legal condition that differs from that of the colonizer, which is not the case. For this
reason, there is no contradiction between the principle of territorial integrity and the principle
of self-determination: in the context of decolonization, the former gives way to the latter. It is
thus crystal clear that the principle of self-determination of the peoples as conceived by the
United Nations focuses on those peoples under colonial rule or foreign occupation and is
absolutely not applicable to secessionist tensions within democratic States that are members
of the European Union.

Leaving aside the cases of decolonization, international law understands secession processes
and the creation of new States as pre-legal phenomena. And it only embraces them when the
creation of these new States is actually effective, or when they emerge as a consequence of
serious violations of human rights or of a situation threatening international peace and
security and requiring the intervention of the Security Council. In other words, no norms and
principles have been adopted under the scope of international law that allow for the unilateral
secession of a territory, that is, that consider a unilateral declaration of independence as legal.

International law does neither authorize nor forbid unilateral declarations of independence for
they are understood as something alien to it, an internal matter of each State. Consequently, it
merely acknowledges, when applicable, the international effects and legal consequences that
might arise from specific, existent and effective political realities. If we were talking about a
pacific and agreed process of secession, international law would regulate the consequences of
the creation of this new State, and the rest of the States would then recognize it or not. If the
process is not pacific and agreed upon, other principles of international law are applicable such
as the principle of non-intervention in other States’ internal affairs, the prohibition of the
threat or use of force or the respect for human rights.
Additionally, international practice as seen during the processes of decolonization and the
creation of new independent States of Central and East Europe acknowledges the preexisting
territorial borders, reaffirms the States’ territorial integrity and denies the viability of recurrent
secession processes. In this respect, some voices claim that the International Court of Justice
Advisory Opinion on Kosovo’s unilateral declaration of independence underpins the
international legal nature of a hypothetical unilateral declaration of independence. In my
opinion, this is a completely misguided approach. It seems to me that the opinion of the
International Court of Justice has been overused in a simple and decontextualized manner and
its content has not been thoroughly examined. Likewise, the extensive and interesting legal
grounds pointed out by the Canadian Supreme Court as regards the secession of Quebec have
not been given due attention.

In any case, there are different groups for whom the right to secede from the State cannot be
proscribed. We are talking about territorial communities whose ethnic, religious, linguistic or
cultural identity is repeatedly persecuted by the national institutions and their territorial
offices, or whose members are subject to serious and systematic discrimination in the exercise
of their civil and political rights leading to widespread violations of both the individuals’ and
the peoples’ basic human rights. In this sense, only on an exceptional basis could international
law acknowledge and support a unilateral secession if justified as a last resort, that is,
secession as a solution, given a situation of severe violations of human rights and of the
principle of self-determination in its internal dimension, as clearly shown by the Kosovo case.
In addition, also exceptionally, international law refuses unilateral declarations of
independence not on the grounds of their unilateral nature but rather on the grounds of their
link to the infringement of basic norms and principles of international law, as happened in the
case of Crimea.

In a democratic context, all political aspirations should be channeled ensuring respect for the
rule of law on which fair and equal societies are built. Despite the fragile international
consensus on the precise meaning of the term “rule of law”, there is no doubt that in the last
few years international law is witnessing its emergence as a principle or value of universal
nature. Although it might be true that it does not constitute a legal obligation under
international law, it does from the point of view of the European Union. Also, the last steps
taken by international law clearly show the inseparable nature of democracy, human rights
and rule of law. Consequently, any unilateral pro-independence action is inconsistent with a
democratic context under international law, as proved by the cases of Quebec and Scotland.