SECESSION AND IRREDENTISM AS A CAUSE OF INSECURITY
Published Aug. 14, 2019, 1:55 p.m. by Moderator
Irredentism is a term that used to refer to the movement of people and territory from one state to another. It involves the demarcation of new international boundaries and a transfer of sovereignty to the new state. Irredentism originated in the nineteenth century, has been at the heart of many international conflicts since the Second World War. Irredentism is usually regarded as nonstarter in any secession arguments. This paper contends that irredentism is legitimately distinguishable from secession especially with regard to the application of principles of international law such as self-determination, recognition of the state by the global community of United Nations, and the consent of the ‘mother state’ that ‘new state’ wants to separate from. The paper goes into detail about the legal obstacles that ‘secessionists’ face in seeking to secede from the ‘mother state’ to the ‘new state’. It also outlines the present-day legal framework appropriate to irredentist secession based on the principles of international law that safeguard territorial sovereignty, non-intervention and peaceful resolution of territorial disputes. The paper concludes that international law expressively restrains the possibility for irredentist secession as a legitimate and political phenomenon.
Keywords: Secession, Irredentism, Self-Determination, International Law
Secession is described as the ‘process of state creation’. It is neither described by treaty laws and the United Nations General Assembly. It is essentially absent in all international legal instruments. Secession is in direct contradiction with the two core principles of international law; sovereignty and territorial integrity. The international community views secession as chaotic, divisive and a cause on political instability across the world. In 1970, the then United Nations Secretary-General declared that the United Nations will never accept secession as an international principle in all its member states. Secession is not defined within any legal framework and it has proved difficult for scholars to find a definition that encompass all of its components (Anderson, 2019).
Glen Anderson defines secession as “pulling out of a territory whether from a colony or from an existing state to a new state that is completely and fully independent from the ‘mother state’. This definition in itself brings some major challenges. The definition assumes that secession is the same as ‘pulling out’. It also assumes that secession is consensual and unilateral and it completely excludes irredentism which does not lead to the creation a new state and is the unification of an existing state’s territory with the territory of another existing state. Lastly it excludes the independence of states from a colonial master (Anderson, 2019).
The word ‘secession’ is derived from the Latin words secession” “se” which means “apart” and “cedere” which means “to go”. The Oxford English Dictionary which defines “secession” as “the action of seceding or formally withdrawing from an alliance, a
federation, a political or religious organization, or the like.” In this definition in its abstract sense secession is synonymous with ‘withdrawal’ or ‘pulling out’. Compare this definition with ‘annexation’ which comes from the Latin words “annecetere” which means “to bind to.” The Oxford English Dictionary defines the word “annex” as “joining in a subordinate capacity.” (Anderson, 2019).
From this definition, it is assumed that annexation occurs when another state forcefully takes the territory of another state while secession is when a part of an existing state breaks away from the ‘mother state’ to form a new independent state. Annexation is largely driven by an external state actor such as a nation state while secession is usually driven by local non state actors such as a rebel groups or political movements funded by external state actors. It is pretty clear that annexation and secession are two different political phenomena. There is confusion between cession means giving up a claim of ownership and secession which usually does not involve consensual and unilateral giving up of any territories (Anderson, 2019).
The basic definition of secession as “the pulling way of a part of an existing state to create a new state” focuses on the actual events but not the legal implications of such an event. A detailed version that anchors principles of international law defines secession as “the extraction of territory and sovereignty from part of an existing state to create a new state. However this definition brings in a new concept; sovereignty. Sovereignty is defined as the set of rules and obligations that allows states the power to act within their territories without external interference. It is only internationally recognized states that can exercise sovereignty (Anderson, 2019).
Crawford described sovereignty as “the totality of international rights and duties recognized by international law.” In this definition Crawford does not recognize sovereignty as a requirement for statehood but more as a term that describes an aspect of a state. In essence, secession leads to the new state acquiring ‘partial sovereignty’ from its’ mother state’. Crawford’s definition does not respect the international legal framework which is binding to all states. The definition ignores the most important aspect of a state; the recognition of its existence by other states and its acceptance into international bodies. The legitimacy of a sovereign can only exists if other states accepts its legitimacy and respect its territorial integrity (Anderson, 2019).
Sovereignty is sometimes synonymous with independence. Anzilotti described independence as “no more than the normal condition of States according to international law.” Independence is also described as suprema potestas or external sovereignty which means that the State no higher authority over it other than that of international law.” Sovereignty is not absolute and there are conditions that have to be satisfied before any new state is accepted as a sovereign. Secession can therefore be deemed to occur when a part of an existing state pulls away to form a new state that has sovereignty. Secession is a process with an outcome. Secession involves a series of events from actual conflict to negotiations and signing of agreements (Anderson, 2019).
In Crawford’s definition secession is “the creation of a state by the use or threat of force
without the consent of the former sovereign." Secession can therefore only happen through military means not diplomatic means. Heraclides also described “secession as a special kind of territorial autonomy that involves states. It is usually an unexpected unilateral act towards independence on the separatist part of the state (Anderson, 2019).
Kohen described secession as the creation of a new fully autonomous entity that is distinctly separate from the existing state. Based on these two arguments there are two kinds of secession; consensual of unilateral. In the previous arguments, secession has been described in the unilateral sense not in the consensual sense (Anderson, 2019).
Consensual secession is divided into constitutional secession and politically negotiated secession. Constitutional secession occurs with the consent of the existing force. It does not require any violent actions. It is further sub-divided into negotiated and explicit secession. Negotiated secession occurs within the constitutional and legal framework of the existing state even when there is no law that allows such an event. This approach requires a constitutional amendment that legally allows the separatist state to establish a new state (Anderson, 2019).
A good example is the ‘Secession of Quebec’; the Supreme Court of Canada allowed Quebec or any other state the right to secede provided there was a constitutional amendment that allowed for negotiated secession. In 2000, the Canadian Parliament passes the Clarity Act that anchored the Supreme Courts’ ruling into Canadian law. Now all that a Canadian state needs to do to secede from Canada is to hold a referendum where a clear majority votes for secession. This is followed by a negotiated agreement with the other Canadian states. After successful negotiations, the Canadian parliament will pass an amendment allowing that state to secede. The ruling by the United States Supreme Court in the case ‘Texas vs White’ the ruling is interpreted in some quarters as alluding to the right to secede (Anderson, 2019).
Explicit constitutional secession happens when the constitution of the existing state has incorporated into law a legal framework for any provincial unit or federal region to secede from the ‘mother state’. The constitution has a laid down procedures that have to be followed to the letter for secession to occur. Some of these provisions of law that grant secession include the 1921 Liechtenstein Constitution, the 1931 Chinese Constitution, the 1947 Constitution of the
Union of Burma, the 1968 Constitution of the Czechoslovak Socialist Republic, the 1974 Constitution of the Socialist Federal Republic of Yugoslavia, and the 1977 Constitution of the Soviet Union. Other recent provisions include the 1994 Ethiopian Constitution and 2003 Constitutional Charter of the State Union of Serbia and Montenegro All these provisions give a measure of secession for the states achieving secession altogether that’s a hurdle for any of the constituent national groups in those countries (Anderson, 2019).
Politically negotiated secession also occurs with the consent of the existing state. It usually does not involve any use of violence. For this to happen the existing state and the ‘separatist groups’ have to be willing to sit down and resolve the dispute peacefully. This is the approach used when the existing state has refused to give constitutional guidelines to drive the process. It is usually the route followed when the separatist groups and the existing state are in good terms. Examples of politically negotiated secession include the creation of independent Norway, Iceland, Ireland, Senegal, Syria, and Singapore just to mention a few (Anderson, 2019).
Norway seceded from the Union of Sweden and Norway in June 1905, after holding a referendum for independence where 99% of Norwegians voted to leave the Union. Iceland seceded from Denmark in 1918 after enacting the “Act of Union,” which gave it independent status but within the Danish Monarchy. Southern Ireland became independent from the United Kingdom following an Act by the British Parliament that relinquished their claim to that territory. Immediately after independence in 1960 the Senegalese government formally withdrew from the Mali Federation, arguing that all the states were sovereign and each entitled to the right to withdraw. Other examples include Syria withdrew from the United Arab Republic, Singapore seceding from the Malaysian Federation passed a law allowing the secession (Anderson, 2019).
After the end of the Cold War in 1991, the United Soviet Socialist Republic granted some of its former states independence from the union. Those states that became independent after the breakup of the Soviet Republic include Estonia, Latvia, and Lithuania, Azerbaijan, Kazakhstan, Kirgizstan, Tajikistan, Turkmenistan, Uzbekistan, Armenia, Belarus, Georgia, Moldova and Ukraine. Czech Republic and Slovakia respectively seceded from Czechoslovakia Republic In January 1993 (Anderson, 2019).
Unilateral secession happens without the consent of the existing state’s and in most cases will involve some measure of violence. This is usually the case when there are no constitutional guidelines to drive the process. Constitutional guidelines does not guarantee the ‘separatist groups’ will follow the constitutional route. The separatist groups may deem the constitutional provisions to be inadequate or insufficient to address all their concerns. Unilateral secessions usually after unsuccessful political negotiations. At the moment of ‘secession’; a ‘conflict of interest’ arises between the ‘separatist state’ and the existing state on who has sovereignty over the disputed territory (Anderson, 2019).
This ‘conflict of interest’ will escalate to violence attracting the attention of the international community who will act as mediators between the two sides. The mediation process will be anchored in international law and all legal principles will be used to try and resolve the dispute. One of the guiding frameworks of the mediation process is the the international law of self-determination developed and applied through United Nations Charters, Declarations and Resolutions such as the UN Charter, the Declaration on the Granting of Independence to Colonial Countries and Peoples, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation (Anderson, 2019).
Examples of successful unilateral colonial secessions include Indonesia gaining independence from the Netherlands, the Democratic Republic of Vietnam & Algeria from France, Guinea-Bissau from Portugal, Bangladesh from Pakistan, Eritrea from Ethiopia, Bosnia-Herzegovina, Croatia, Macedonia, Montenegro, Slovenia, Serbia and Kosovo from Yugoslavia and South Sudan from Sudan (Anderson, 2019).
Unsuccessful attempts at unilateral secession, include Tibet from China (Ongoing), Western Sahara from Morocco (Ongoing), Katanga from Congo, Biafra from Nigeria, Azawad from Mali, Kashmir from India (Ongoing), the Karen and Shan States from Burma (Ongoing),, the Turkish Republic of Northern Cyprus from Cyprus (Ongoing),, Tamil Elam from Sri Lanka, Kurdistan from Iraq &Turkey(Ongoing), Bougainville from Papua New Guinea, Serbian Krajina from Croatia, Anjounan from the Islamic Republic of Comoros, Nagorny-Kharabakh from Azerbaijan (Ongoing), Somaliland from Somalia (Ongoing), Chechnya from the Russian Federation (Ongoing), Gagauzia from Moldova, Transnistria from Moldova, Abkhazia & South Ossetia from Georgia (Ongoing), and Catalonia from Spain (Ongoing), (Anderson, 2019).
Case Studies: South Sudan, Catalonia and Kurdistan
In 2011, South Sudan became the world’s youngest nation after formally breaking away from the Sudan. In January 2011 the South Sudanese had overwhelmingly voted to secede and establish the new state. Independence did not come easy, South Sudanese rebels had been battling the Sudanese regime for many decades. Africa has largely remained untouched with secessionist movements. Africa’s borders are still the same ones left by colonialists with the exception of Eritrea which broke away from Ethiopia (Schraeder, 2019).
South Sudan is an outlier as traditionally the Organization of African Unity’s (OAU) core doctrine was the stability of post independent African states. The doctrines recognizes the sovereignty of the African States which prevents non-interference of the affairs of one state by another. The international community also respected these doctrines and practiced non-interference. For instance the Soviet Union withdrew its support to Somalia when it invaded parts of Ethiopia (Knox, 2019).
In a rush to create colonies the colonial powers did not take into account the religious, ethnic or cultural differences of the groups within the colonies and this one of the reasons for the prolonged conflict between the South Sudanese rebels who were mainly Christian and Black Africans and the Northern Sudanese who were mainly Arab Muslims. Rapid decolonization and independence did not give these newly independent African states time to redraw new borders. Different ethnic and religious groups found themselves divided into different African states and this is one of the main reasons for civil unrest in many African countries (Knox, 2019).
In the case Sudan, the British colonialists favored Northern part of Sudan and the Southern part was left largely undeveloped. At independence all the structures of power were in the hands of the Arab North. The military government of Sudan went on a bloody campaign of Islamization and Arabization of the South and this led to full blown civil war with the United States backing South Sudan. A departure from the doctrine of non0interference. The Organization of African Unity became the African Union in 2002. It is within the African Union that the Comprehensive Peace Agreement was signed. It granted full independence to South Sudan (Knox, 2019).
The Kurds of Iraq held an independence referendum on September 25, 2017, in which an overwhelming majority voted to secede from Iraq and form an independent state of Kurdistan. Similarly, a month later, the Catalan people voted in an independence referendum where the overwhelming majority voted to secede. The central governments in both Iraq and Spain opposed the referenda rejecting the Kurds’ and the Catalan bid to create new independent states. In both cases the international community refused to interfere in the internal processes of those two countries. The international community respected the sovereignty of Spain and Iraq over those regions (Sterio, 2019).
Self-Determination according to international law, allows minority groups that qualify to be referred as “peoples” the right to self-determination; the capacity to liberally control their political future and form a government that represents those ‘people. The principle of self-determination begun after the World War I. Germany, Austria-Hungary, and the Ottoman Empire, lost all their colonies after the war and several new independent states were created out of the territory of these former empires (Tomz, 2019).
The theory of self-determination, justifies secession as a matter of last recourse especially in situations where the people are being oppressed or where the mother state’s does not legitimately recognize the rights of those people as citizens case in point South Sudan. The United Nations Charter addressed the issue of self-determination in its 1960 Declaration on the Granting of Independence to Colonial Countries and in the 1970 Friendly Relations Declaration.
Both these declarations, only anticipated self-determination as a matter of last recourse especially when dealing with decolonization. In the South Sudan case both conditions for the right to self-determination were satisfied insofar as the South Sudanese peoples were being oppressed by Sudan’s military government that did not sufficiently represent the interests of Christian Africans. The declarations also affirmed the primacy of the principle of territorial integrity of existing states. This declarations embraced the idea of self-determination but understood that it would lead to the territorial disruption so a caveat was put in place allows secession of existing states only in life-threatening cases of oppression or colonization. Iraqi
Kurds and Catalans did not meet the minimum threshold that the Iraqi and Spanish governments were indulging in the persecution of Kurds and Catalans respectively. The governments of Iraq and Spain have respected the Kurdish and Catalan autonomy these two peoples cannot use international law to get complete autonomy through secession. With the absences of an international legal framework to secession, the Kurdish and Catalan independence claims are subject to the local domestic laws and the resolution can be done through political negotiations. Secession and irredentism are mutually distinguishable. Irredentism is the movement of people and territory from one state to another while secession is the creation of a new state from a new state.
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Knox, C. (2019). The Secession of South Sudan: A Case Study in African Sovereignty and International Recognition. Retrieved from https://digitalcommons.csbsju.edu/cgi/viewcontent.cgi?article=1001&context=polsci_students
Schraeder, P. (2019). From Irredentism to Secession. Retrieved from https://www.press.umich.edu/pdf/0472098985-ch5.pdf
Sterio, M. (2019). Self-Determination and Secession under International Law: The Cases of Kurdistan and Catalonia | ASIL. Retrieved from https://www.asil.org/insights/volume/22/issue/1/self-determination-and-secession-under-international-law-cases-kurdistan
Tomz, M. (2019). The Morality of Secession. Retrieved from https://web.stanford.edu/~tomz/working/secede.pdf