As evinced by countless instances past and current, ethnic conflict has revealed its adeptness to engender severe chaos and disorder, igniting both protracted and intractable struggles. Resolutions to such conflicts encompass a wide spectrum, ranging from co-optation to degrees of autonomy. Secession, conversely, is not recognized as a legal option.
Self-determination, although deemed a human right by the UN General Assembly, does not embrace the right of secession, as safeguarding state sovereignty is a sine qua non in preserving the structure of the international system. To avert a violation of sovereignty and territorial integrity, the legal right to self-determination was defined only to include extrication from alien subjugation in the context of decolonization; self-determination did not grant sub-state groups the right to secede. Today, several provinces or regions within states consist of ethnic groups with secessionist tendencies. Denying ethnic enclaves the right to secede conforms to international law edicts to respect the territorial integrity of states. If secession has serious implications on a system of states that recognize state sovereignty as a main cornerstone to the functionality and continuity of the international system, then when is secession ever justified?
As a region rife with ethnic discord, the Balkans has experienced intense conflict culminating in several occasions of ethnic cleansing. As the most recent state to join the world community, Kosovo unilaterally declared its independence on 17 February 2008. Buttressed by the immediate recognition by the Western powers and backed militarily by NATO, Kosovo’s independence constitutes an aberration from the traditional modus operandi by which conflicts are managed and resolved. Is secession justified if it is deemed the sole solution to the cessation of human rights violations perpetrated at a provincial ethnic group by the state? The human rights abuses perpetrated by the Serbian government against the ethnic Albanians in the Kosovar province of Serbia served as a justification for international intervention and subsequently Kosovo’s right to secession. If this establishes secession as a method by which to protect minority ethnic groups from human rights violations, then it concurrently serves as a deterrent for the state to perpetrate such abuses in fear of losing territory. Should international law recognize the need in some instances to redraw borders to better conform to today’s circumstances? Does Kosovo represent sui generis or does it instead aid in the development of customary international law, approbating other secessionist movements to follow the same course? Ultimately, if secession is to occur, it must be sanctioned by international law and its legal scope clearly defined.
Self-determination as a Legal Right
After the Second War World, self-determination morphed from a political principle into a legal right, conceived as a part of a larger body of human rights protections. Self-determination served as a legal conduit for facilitating the process of decolonization, compelling colonial powers to relinquish control over their colonies, in effect transforming them into self-governing, independent states (10). This new variant of self-determination was expressed in the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples (General Assembly Resolution 1514):
The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the United Nations Charter, and is an impediment to the promotion of world peace and cooperation, and that steps should be taken to transfer, unconditionally, all powers to the Trust and Non-Self-Governing Territories so that they might enjoy complete freedom and independence. (Declaration/UN.org)
As both a political principle and legal right, self-determination was by no means intended to endorse the right of an ethnic group to secede territory from a legitimate state. The clear discrepancy between secession as an expression of self-determination and the preservation of the territorial integrity of states was clarified by a 1921 report by the Commission of Rapporteurs within the League of Nations: To concede to minorities, either of language or religion, or to any fractions of a population the right of withdrawing from the community to which they belong, because it is their good wish or pleasure, would be to destroy order and stability within States and to inaugurate anarchy in international life, it would be to uphold a theory incompatible with the very idea of the State as a territorial and political unity. (Wippman 9) Given the endemic ethnic violence in the Balkan states, one can easily conclude that the current borders are incompatible with ethnic realities. The original delineation of the borders was imperfect, as disparate ethnic groups became subsumed within the same state or a single ethnic group divided among several states. But even where drawn vigilantly, population transfers across state borders—displacements, expulsions, even migrations persuaded by economic incentives—have transformed ethnic composition, amplifying the issue of minorities and ethnic groups. Furthermore, conversions or high birthrates of a particular group have skewed the ethnic balance within a state or province. As a result of such fluctuations, the Albanian population in the Serbian province of Kosovo has steadily increased and comprises approximately 88% percent according to the World Bank Living Standards Measurement Study in 2001 (Kosovo State/UNMIK). Regions or provinces in many states contain ethnic minorities, but should international law recognize the need to redraw borders to better conform to today’s circumstances? Redrawing borders outside the context of decolonization is neither sanctioned by international law nor the world community, as such infringement of territorial sovereignty would initiate the demise of structure of the international system.
Decolonization, however, was not deemed a violation of territorial sovereignty since colonies were noncontiguous, separate territorial entities from their imperial overseers. The scope of self-determination, however, has proved nebulous as ethnic and political groups within states claim that, by virtue of its essence, the right of self-determination should legally extend beyond decolonization. In order to pacify sub-state groups clamoring for independence, vital mechanisms to prevent instability are employed in lieu of secession such as autonomy, greater political participation, and protections of minority rights.
Averting Secession: Minority Rights and Autonomy
The Universal Declaration of Human Rights (UDHR) of 1948 acknowledged individual rights for members of minority groups, but a clear dichotomy was established between minority rights and self-determination. In 1992, the collective rights of ethnic groups were emphasized by the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities, as espoused by the General Assembly. This declaration supports the contention that encouraging the development of minority communities and safeguarding group identities–rather than imposing cultural assimilation–best preempts instability and ethnic strife. Ethnic conflict and separatist claims are perceived as corollaries to the denial of equal political, economic, and cultural participation in society. According to this school of thought, tolerating pluralism and providing equal opportunities for political representation will obviate any secessionist claims and likewise quench any justification for secession. As a rebuttal to this viewpoint, other scholars contend that the expansion of such collective rights will only embolden differences between majority and minority and act as a centrifugal force, thereby threatening the cohesion of the state (Wippman 14).
The body of international law regarding minority rights is not comprehensive, but still evolving. Nonetheless, protections of minorities serve as one mechanism by which to pacify self-determination claims of ethnic groups. The effectiveness of minority rights in preventing ethnic conflict, however, continues to be debated. Secessionist claims are often a product of a confluence of variables, and therefore may not simply be assuaged by special rights and protections (Wippman 15). Regardless of the extent minority rights can avert internal conflict, international law does not recognize the option of secession as a solution, as popular sentiments still exhort for the respect of state sovereignty and inviolable borders.
Secessionist demands have been placated by granting regional autonomy to ethnic groups, as evinced by the Basques in Spain, Miskitos of Nicaragua, the Nagas in India, and the Afars in Ethiopia. However, some scholars, such as Henry Hale, assert that regional autonomy in ethno-federalist states do not mollify, but instead exacerbate secessionist claims (Cornell 247). The degrees of political participation and autonomy afforded to an ethnic group may illuminate the likelihood of secessionist demands; ascertaining the degree by which other options must be exhausted prior to resorting to secession will help reveal the trajectory of a successful secessionist movement and guide international law in outlining legal parameters for secession.
Justification for the Use of Force: Humanitarian Intervention
As established above, self-determination does not encompass the right of groups to secede territory from a sovereign state. Thus, current international law recognizes no occasions when secession is legal or warranted (Wippman 15). However, the recent secession of Kosovo has prompted a deeper inspection to ascertain the unique circumstances by which secession may be legally justified. A potential legal basis for secession may be substantiated if a state fails to protect the rights of its minorities–and to a further extent perpetrates injustices against minorities within its territory.
Ending ethnic violence between state and minority may require external intervention, eclipsing the domestic jurisdiction over such internal matters and violating state sovereignty. Although humanitarian law regarding interstate conflict is well developed, international law relating to foreign intervention in civil conflicts is inchoate (Wippman16). Currently, international law authorizes foreign assistance to subdue civil unrest, monitor peace agreements, and engage in reconstruction efforts if consented by the state in distress; conversely, foreign assistance to groups agitating against the state is deemed a violation of territorial sovereignty. To conform to international law, the intervening forces must be invited, but if a consensus is not reached among the hostile parties, the U.N. may invoke Chapter VII of the U.N. Charter permitting the use of force. The invocation of Chapter VII warranting such intervention is only valid if the Security Council rules that the conflict endangers international peace (17). On this issue, the Security Council possesses wide discretion, but is often hampered by the veto power of the permanent members. Likewise, states may be hesitant to consent to intervention in internal affairs in fear of establishing a precedent which may in turn be used against them at a future date (18).
Intervention has occurred, both with and without the consent of international law, for reasons such as preventing conflict from spreading regionally and causing a destabilizing ripple effect, safeguarding human rights, or advancing self-interests of the intervening party. Humanitarian interventions must be distinguished from intervention by a foreign state to protect its own nationals, which may fall within the realm of self-defense. The difficulty in discerning pure intentions from political or strategic goals as a motive for humanitarian intervention has obfuscated the process of incorporating humanitarian intervention into an international law doctrine (Bederman 229). Nonetheless, humanitarian intervention may constitute a justification for the use of force and an exception to Article 2(4).
The ethnic strife between the Serbs and Kosovar Albanians in Serbia provoked the intervention of NATO in 1999, absent the sanction of the United Nations. NATO maintained its intervention was vital to end the human rights crisis perpetrated by the Serbian government against its ethnic-Albanian population–purported to amount to ethnic cleansing. This is a point of contention, however, as some argue that the Kosovo Liberation Army intensified ethnic tensions in Kosovo to justify NATO’s intervention. Regardless, relations between the Serbs and the Kosovar Albanians were considered intractable to such a degree that peaceful coexistence within the same state was unachievable. After failed and stalemated negotiations between the state and provincial ethnic minority, severing the province of Kosovo from Serbia was deemed the sole available option to end hostilities.
Although outside the scope of self-determination and not legally sanctioned by international law, Kosovo was able to secede from Serbia and achieve status as an independent state. Justified as the last resort to protect the Albanian minority from human rights violations, Kosovo’s secession was achieved with the military backing of a regional organization (NATO) that defended the Kosovar Albanians, helped build state institutions and infrastructure, and ultimately facilitated its independence. In effect, Kosovo typifies an example of humanitarian intervention culminating in secession as a solution to ethnic conflict. In the following section, I provide a brief geopolitical assessment of Kosovo to reveal the source of Western and European interest in the Balkans, hence distinguishing it from other secessionist regions. Kosovo’s Secession: Application of International Law Kosovo’s independence was facilitated not according to international law, but ultimately became the decision of the United States and select European countries. International law emphasizes the inviolability of borders, and thus prohibits their repositioning as a result of secessionist or irredentist demands. Consequently, the United Nations did not sanction Kosovo’s independence. Kosovo is a case distinct from the former Soviet and Yugoslav republics and no body of law yet exists to administer secessionist claims of provincial or sub-state entities.
In 1999, NATO conducted a 78-day aerial bombardment against Yugoslav government and military forces, unilaterally intervening in the conflict between rogue Kosovar Albanian groups and Yugoslav forces. As a regional security organization, NATO claimed such intervention was obligatory to prevent further humanitarian abuses to the Albanian population in Kosovo. As described earlier, international law regards the use of force as illegal unless permitted by a Security Council Resolution invoking Chapter VII of the UN Charter. Despite this, NATO’s use of force proceeded without the consent of the Security Council (Judah 87). In response to the humanitarian crises, the UN did however issue Resolutions 1239 (14 May 1999) and 1244 (10 June 1999) in attempt to stop abuses and secure a peaceful resolution to the conflict. Both resolutions exhorted the fundamental importance of upholding of state sovereignty. As explicitly expressed in Resolution 1244, the Security Council underscores “the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region, as set out in the Helsinki Final Act and annex 2.” Resolution 1244 and those before and after it were absent any mention of secession as a potential solution to the conflict, and instead proposed “for substantial autonomy and meaningful self-administration for Kosovo.” (Basic Documents/NATO.int)
Resolution 1244 also mandated the establishment of a NATO-led international military presence in Kosovo (KFOR) to enforce the ceasefire and facilitate the return of refugees and internally displaced persons. The creation of an interim civilian administration, the United Nations Mission in Kosovo (UNMIK), was designated to administer reconstruction, develop state infrastructure, and establish democratic institutions. Still part of Serbia, Kosovo attained considerable autonomy, although the final determination of Kosovo’s status remained outstanding (Basic Documents/ NATO.int). The negotiation process regarding the status of Kosovo was delegated to Martti Ahtisaari, a former president of Finland. Ahtisaari and his team developed a blueprint for Kosovo, concluding that given the “diametrically opposed positions” of the Serbian central government and the Kosovo Albanians, “no amount of additional talks, whatever the format, will overcome the impasse.” He declared that “the only viable option for Kosovo is independence, to be supervised for an initial period by the international community.” (Judah 113) Ahtisaari’s words expressed the sentiments of the United States and major EU countries. In effect, Serbia’s proposal to concede full autonomous rights to Kosovo were rebuffed (Carpenter 7). With the power of the Russian veto, the Security Council rejected Ahtisaari’s plan (Judah 114). Nonetheless, the plan proceeded without UN approval and was implemented according to a quid pro quo arrangement: In return for the support and recognition by the United States and a majority of EU countries, Kosovo had to adhere to the stipulations outlined in the Ahtisaari plan, including the acceptance of EU missions to aid in the administration of Kosovo, effectively deeming Kosovo an EU protectorate (115).
The unilateral declaration of independence by Kosovo’s assembly proceeded with the encouragement and assurances of the West. In essence, the triumph of Kosovo’s independence was credited to the will and desire of the major world powers. Considering Kosovo’s declaration as unilateral is erroneous since it was accomplished with the outright collaboration of the US and foremost EU states. Given the clear objections of veto-wielding Russia and China, the United States and EU countries therefore skirted the Security Council, not only operating without a UN endorsement but also violating resolution 1244 which guaranteed the sovereignty and territorial integrity of Serbia.
At Serbia’s behest, the UN General Assembly requested the ICJ evaluate the legitimacy of Kosovo’s declaration of independence, representing the first instance the World Court would deliver a ruling concerning unilateral secession. Seventy-four states abstained and six voted against requesting an advisory opinion from the ICJ—one reason given was to prevent a judicial body from ruling on a political issue (UN Seeks World Court/bbc). Although non-binding, the International Court of Justice’s advisory opinion issued on 22 July 2010 declared that international law does not proscribe declarations of independence, but failed to define the legal parameters by which a claim of self-determination can overshadow state sovereignty. The continued efficacy of international law in preserving world peace and order, however, is reliant upon the development of a clear legal policy outlining instances in which secession may be warranted.
The Evolution of International Law: Secession as a Legal Option
If the legal parameters to the right of self-determination are to be redefined, international law must identify its scope, similar to its resolutions and edicts regulating the decolonization movement. Kosovo’s secession from Serbia and its flagrant violation of territorial sovereignty signals an important development in international law regarding human rights. The first President of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and also head of the Special Tribunal for Lebanon, Italian jurist Antonio Cassese suggests (Italian Judge/EarthTimes):
Human rights are increasingly becoming the main concern of the world community as a whole. There is a widespread sense that they cannot and should not be trampled upon with impunity in any part of the world. The international community is increasingly intervening, through international bodies, in internal conflicts where human rights are in serious jeopardy. (Franck 857)
Because it desecrates state sovereignty, intervention to halt human rights abuses is a contentious subject. Moreover, treatment of nationals and minorities was deemed a domestic affair as expressed in Article 2 (7) of the UN Charter:
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII. (Charter of the UN/un.org)
Authorizing foreign intervention to stop abuses from armed aggression, Chapter VII was invoked to stop discrimination against the black Africans in Rhodesia and South Africa and again in 1993 to end abuses perpetrated by the junta in Haiti. Resolution 1244, however, references intervention to stop violations of humanitarian law and the perpetration of human rights abuses by a state against its own nationals (Franck 858). Kosovo’s successful bid for independence demonstrates the willingness of factions of the international community to espouse intervention for the purpose of stopping and preventing human rights abuses, in effect countermanding state authority over a domestic matter.
As in Kosovo’s case, secession was deemed the only feasible option to end the human rights abuses. If this establishes secession as a method by which to protect minority ethnic groups from human rights violations, then it concurrently serves as a deterrent for the state to perpetrate such abuses in fear of losing territory. Although considered a normal post-conflict practice until the Second World War, territorial punishments have since been condemned by the UN Charter and the 1949 Geneva Conventions. Any potential deterrent effect was sacrificed to preserve and uphold the territorial integrity of the defeated states. The Security Council possesses the power to effect such a punitive measure against a state deemed a threat to peace and order, however transferring territory without the states’s acquiescence would be inconsistent with Article 24 of the UN charter (Ku 259). Nonetheless, if secession is sanctioned as a legal option in response to human rights abuses, the loss of territory does indeed constitute a punishment to the state.
International law regulates and clearly outlines the legality of many components of international relations. Secession must not be excluded from a body of norms and standards dictating occasions by which it may be justified. Due to the lack of legal guidelines, Kosovo is illustrative of secession as a corollary of the discretion of major world powers. If international law incorporates legal principles regulating secession into its body of norms, it must vigilantly strike a delicate balance between advancing protections of peoples and preserving state sovereignty to prevent an implosion of the international system. The proliferation of secessionist movements may certainly overwhelm an international system comprised of states. At the least, international law should recognize secession as a legal option—albeit the last resort—to ending grave abuses by the state and protecting a minority or ethnic group.
Theories of secession exist on a continuum, encompassing justifications such as the will of a provincial majority by plebiscite to the protection of cultural identity from assimilation. Most representative of Kosovo, just-cause theories cite instances by which secession may be warranted to remedy injustices against ethnic or minority groups. Allen Buchanan, a scholar of international law, recognizes a “remedial right to secede” for groups subject to discrimination and grave injustices by which the only recourse to end abuses is to sever the territory from the state. The basic premise of this theory lies in the assumption that states’ legitimacy over their territory is contingent upon the just treatment of its nationals (Moore 146). Resolution 1244 has perhaps initiated a new phase in the development of international law regarding legally sanctioned intervention in respect of human rights law, ultimately culminating in secession.
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