Moot Issue: Secession

Week 5 – Moot Court and Arbitration

Roselyn Prima Winata, S.H., LL.M.
Introduction – What is Seccesion?
• The unilateral withdrawal from a state of one of its constituent
parts with its territory and population.
• This right does not yet exist under International Law.
• Formally, ICJ neither prohibits nor authorizes seccession (as
confirmed by ICJ in the Advisory Opinion on Kosovo).
• Principle of Territorial Integrity – bedrock and foundational
principle of international law.
• Principle of Self Determination – the right to be a state.

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Principles of Self Determination
UN Charter
• Art. 2(1): One of the purposes of UN is to “develop friendly
relations among nations based on respect for the principle of equal
rights and self-determination of peoples, and to take appropriate
measures to strengthen universal peace.”
• Art. 55: UN commits itself to several goals concerning
international economic and social co-operation ‘with a view to the
creation of conditions of stability and well-being which are necessary
for peaceful and friendly relations among nations based on respect for
the principle of equal rights and self-determination of peoples’

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Principles of Self Determination
1960 Declaration on the Granting of Independence to Colonial Countries
and Peoples (UNGA Res 2625)
• ”all peoples have a right to self determination; by virtue of that right they freely
determine their political status and freely pursue their economic, social and
cultural development.”

Declaration on Principles of International Law concerning Friendly

Relations and cooperation among States in Accordance with the Charter of
the United Nations
• the right to self-determination, which entails the right of all peoples ‘freely to
determine, without external interference, their political status and to pursue
their economic, social and cultural development’ (Principle 5).
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Principles of Self Determination
Reference Re Secession of Quebec – Supreme Court of Canada (1998)

The Court declared that the principle of self-determination ‘has

acquired a status beyond “convention” and is considered a
general principle of international law.

Question posed: Whether there existed in international law a

right to self-determination which would give Quebec the right
unilaterally to secede.

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Principles of Self Determination
Important question
• Scope & content of the principle
• Whether the principle has a validity in a post-decolonization
phase
• Who is entitled to self-determination as currently expressed?

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Statehood
Art. 1 of the Montevideo Convention on Rights and Duties of
States

State as an international person should possess the following

qualifications:
(a) a permanent population
(b) defined territory
(c) government, and
(d) capacity to enter into relations with other states.

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Recognition
• Arguably an additional criterion of statehood as a matter of
development of self-determination.
• Constitutive vs. Declaratory – the latter believes recognition is
merely political and not legal.
• Denial will obviate statehood.
• Example: Rhodesia
• Entity seeking to be a state and accepted by the international
community as

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Recognition
• Collective recognition: a tool in political conflict management.
E.g. EU member states’ recognition in the case of the dissolution
of the former Yugoslavia.

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Recognition
Crotia; Bosnia and Herzegovina
• Emerging out of the former Yugoslavia
• Recognized as independent states by EU member states;
• Admitted to membership of the UN (which is limited to ‘states’ by Art. 4 of
the UN Charter

Kosovo
• Declared independence in 17 February 2008 from Yugoslavia
• Lack of effective control
• Significant international recognition, culminating in membership of the
UN.
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Right to Remedial Secession?
• Remedial secession: secession following severe and widespread
human rights violation against a recognizable vulnerable group
(indigenous people or minority).
• Premise: the preservation of the unity of the state, rather than
being a right, is a state’s responsibility towards its citizens and
the international community.
• Polarized views by Scholars – some claim that a very
exceptional right to remedial secession exists and must be
acknowledged, some remain sceptical.

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Right to Remedial Secession?
ICJ in its advisory opinion in Kosovo noted that:
“Whether, outside the context of non-self-governing territories and
peoples subject to alien subjugation, domination and exploitation, the
international law of self-determination confers upon part of the
population of an existing State a right to separate from that State is,
however, a subject on which radically different views were
expressed by those taking part in the proceedings and expressing a
position on the question. Similar differences existed regarding whether
international law provides for a right of ‘remedial secession’ and, if
so, in what circumstances.”

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Right to Remedial Secession?
• In the absence of egregious violations of international law: it is a
matter of the relevant domestic law.
• Crimea’s claimed secession from Ukraine in March 2014
• Contrary to applicable domestic law, which does not permit
regions to secede in the absence of an all-Ukranian referendum
(Art. 73 of the Ukrainian constitution).
• To research: Catalonia, South Sudan.

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