V.

Remedial Self-determination

The right to colonial self-determination accrues to a population by

virtue of the unlawful maintenance of colonial governance over it.
The right to constitutional self-determination pertains to a
population on the basis of a limitation of consent when subscribing
to the social contract upon which the state is based. A territorial
unit preserves the right to secede in a constitutional compact, or
such a right is generated through subsequent constitutional
practice. Remedial self-determination is generated through the
actions of the central government. Where a central government
persistently and systematically represses a territorially organised,
and perhaps also constitutionally recognised, segment of the
population, a right of secession might be constituted. Similarly,
it is argued that persistent and discriminatory exclusion
from governance of a constitutionally relevant or recognised
segment of the population gives rise to a right to remedial self-
determination.
It has to be admitted that the doctrine of remedial succession
was opposed in scholarship until quite recently.55 However, the case
of Kosovo, and perhaps also the apparent de facto tolerance of
events in Georgia in August 2008, has accorded it greater credence.
Moreover, these recent instances have led to a re-discovery of
authority in favour of the doctrine. For instance, in the Aaland
Islands case of the League of Nations era, the Commission of
Rapporteurs found that:56
The separation of a minority from the State of which it forms a part and
its incorporation in another State can only be considered as an altogether
exceptional solution, a last resort when the State lacks either the will or the
power to enact and apply just and effective guarantees.

55
Indeed, the author must confess to some scepticism in this respect in earlier writings.
56
Report Presented to the Council of the League of Nations by the Commission of
Rapporteurs, League of Nations Doc. B.7.21/68/106 (1921), at 28.

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 Escaping the Self-determination Trap
Failure to grant autonomy and human and minority rights
provisions might therefore be constitutive of a right to self-
determination.
More recently, the African Commission on Human and Peoples’
Rights has ruled that:57
In the absence of concrete evidence of violations of human rights to the
point that the territorial integrity of Zaire should be called to question
and in the absence of evidence that the people of Katanga are denied the
right to participate in Government as guaranteed by Article 13 (1) of the
African Charter, the Commission holds the view that Katanga is obliged
to exercise a variant of self-determination that is compatible with the
sovereignty and territorial integrity of Zaire. … The quest for
independence of Katanga therefore has no merit under the African
Charter on Human and Peoples’ Rights.

This ruling seems to suggest that a population would not be bound

to accept the restraint of territorial unity if it could not participate
in the governance of the state. The Canadian Supreme Court, in
the Quebec Reference, also accepted that remedial self-determination
may exist in certain circumstances, namely “possibly where a
‘people’ is denied any meaningful exercise of its right to self-
determination within the state of which it forms part”.58
The Chairman of the former UN Working Group on Minorities
endorsed this view:59
Only if the representatives of the group concerned can prove, beyond
reasonable doubt, that there is no prospect within the foreseeable future
that the Government will become representative of the whole people, can
it be entitled to demand and to receive support for a quest for
independence. If it can be show that the majority is pursuing a policy of
genocide against the group, this must be seen as very strong support for
the claim to independence.

57
Katangese Peoples’ Congress vs. Zaire, African Comm. on Human and Peoples’ Rights,
Comm. No. 75/92, 1995, para. 6.
58
Reference Re Secession of Quebec, supra n. 17.
59
Eide, “Possible Ways and Means of Facilitating the Peaceful and Constructive Solution
of Problems Involving Minorities”, supra n. 33, para. 84.

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 Remedial Self-determination
In terms of international standards, the authoritative commentary
on the UN Charter finds:60
It is therefore well arguable that discrimination against ethnic minorities
could potentially give rise to a right of secession. … a right of secession
could, however, nevertheless be recognized if the minority discriminated
against is exposed to actions by the sovereign state power which consist in
an evident and brutal violation of fundamental human rights, e.g. through
killing or unlimited imprisonment without legal protection, through
destroying family relations, through exploitation without any regard for
the necessities of life, through special prohibitions against following
religious professions or using one’s own language, and, lastly, through
executing all these prohibitions with brutal methods and measures.
Consequently, one could argue that the right of self-determination laid
down in Art. 1 of the Covenants includes the right to resist such violations
as a form of self-defence, and that secession, even through the use of
force, might offer the only possible defensive relation to brutal oppression.
This view finds support in the important Friendly Relations
Declaration of the UN General Assembly. While the UN
declarations are considered soft law that is not directly binding,
they have an important effect on the development of international
law.61 The Friendly Relations Declaration, in particular, is seen as
highly authoritative.62 That resolution appears to make the
application of the doctrine of territorial integrity conditional on
compliance with the principles of equal rights and self-
determination of peoples by states which would be “thus possessed
of a government representing the whole people belonging to the
territory without distinction as to race, creed or colour”.63 It seems,

60
K. Doehring, “Self-determination”, in B. Simma, ed., The Charter of the United Nations:
A Commentary, Oxford: Oxford University Press (1995), 66.
61
See, e.g., Case Concerning Military and Paramilitary Activities in and against Nicaragua, 1986 ICJ
14, Para. 203; and G. Arangio-Ruiz, The United Nations Declaration on Friendly Relations and
the System of the Sources of International Law, Dordrecht: Brill (1979).
62
E.g., M. Sahovic, ed., Principles of International Law Concerning Friendly Relations and
Cooperation, Dobbs Ferry: Oceana Publications (1972).
63
UN General Assembly Resolution 2625 (XXV), 24 October 1970. Text available at
http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/348/90/IMG/NR0348
90.pdf ?OpenElement, accessed 3 November 2008.

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 Escaping the Self-determination Trap
however, that this wording was originally meant to be more
restrictive than appears at first sight. One might argue that,
according to the intent of the drafters, only colonial and analogous
situations would qualify as those where the government does not
represent the people as a whole, “without discrimination as to race,
creed and colour”. This was indicated by reference to the use of
self-determination “as described above” (i.e., colonial situations,
alien occupation and racist regimes), and the insertion of the words
“and thus possessed” of a representative government. Moreover, the
generally negative phrasing of this provision confirms that it was
meant to restrict the application of the principle thus enunciated,
rather than expanding its application.
Nevertheless, a leading commentator on the Declaration finds
that the following conditions might warrant secession according to
its terms:64
When the central authorities of a sovereign state persistently refuse to
grant participatory rights to a religious or racial group, grossly and
systematically trample upon their fundamental rights, and deny the
possibility of reaching a peaceful settlement within the framework of the
State structure.

The situation may have been clarified further in 1993, nearly a

quarter of a century after the adoption of the Friendly Relations
Declaration. Meeting in Vienna, the World Conference on Human
Rights adopted rather different language when addressing the right
to self-determination:65
In accordance with the 1970 Declaration on Principles of International
Law Concerning Friendly Relations and Cooperation Among States in
Accordance with the Charter of the United Nations, this shall not be
construed as authorizing or encouraging any action which would
dismember or impair, totally or in part, the territorial integrity or political
64
A. Cassesse, Self-determination of Peoples, Cambridge: Cambridge University Press (1995),
119.
65
Vienna World Conference on Human Rights Declaration and Programme of Action,
12 July 1993, A/CONF.157/23, I.2. Text available at http://www.unhchr.ch/
huridocda/huridoca.nsf/(Symbol)/A.CONF.157.23.En?OpenDocument, accessed 3
November 2008.

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 Remedial Self-determination
unity of sovereign and independent States conducting themselves in
compliance with the principle of equal rights and self-determination of
peoples and thus possessed of a Government representing the whole
people belonging to the territory without distinction of any kind.

In this version, the restrictive reference to “as defined above” was

dropped. Moreover, the text now addresses “distinction of any
kind”, rather than distinction as to “race, creed or colour”,
broadening the scope of application further.
At least until developments concerning Kosovo, state practice
was undecided on the matter. For instance, the exclusion from
governance of the ethnic Kurdish population of Northern Iraq
over decades, along with its violent repression, which included the
gassing of villages, has not resulted in support for its campaign for
statehood. Instead, even after the military defeat of Saddam
Hussein’s regime, the Kurdish representatives had to content
themselves with a quasi-federal (regional) status within Iraq.66
Other repressed or excluded minorities have also not been
accorded self-determination status by virtue of this exclusion or
repression alone.
On the other hand, the situation may differ in extreme cases,
where the right of the central government to represent the
population in question is irreparably damaged. It is noteworthy
that five states overcame strong reluctance in Africa to recognise
secession when they extended formal recognition to Biafra. That
ethnically distinct federal unit within Nigeria had declared
independence, but was brutally re-incorporated into Nigeria.
Hence, it can be said that some states recognised Biafra in response
to potentially genocidal action by the central authorities.67
Perhaps more convincingly, Bangladesh obtained very rapid
recognition of its statehood after the defeat of East Pakistan’s
armed forces at the hands of the intervening Indian military.

66
See below, section VIII.
67
D.A. Ijalaye, “Was ‘Biafra’ at any Time a State in International Law?” 65 AJIL (1971)
55.

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 Escaping the Self-determination Trap
Ordinarily, one would have expected that the use of force by India
would have made it very difficult for statehood to mature (as has
been the case, for instance, in relation to the Turkish Republic of
[Northern] Cyprus). Instead, the disenfranchisement of the
population as a result of Pakistan’s interference with the electoral
process, the brutality of the (Western) Pakistani forces and the fact
that some 10 million refugees – a truly staggering number –
consequently fled the country contributed to rapid recognition.68
Overall, scholarship has remained divided on this issue, although
there is a clear trend towards the acceptance of remedial self-
determination. While some argue that “a minority, which is
systematically being denied its basic rights to existence, acquires a
right of self-determination as a defence of last resort”69, an
increasingly smaller number deny such a right70. It is however
correct to observe that several advocates of this doctrine qualify
their support, considering it a possible or potential avenue of
argument.71 In view of this remaining hesitancy within scholarship,
an observation by Peter Hilpold in relation to remedial secession is
particularly useful:72
… there is no international norm prohibiting secession and therefore it is
difficult to see an actual need for such a norm. Of course, it would provide
legitimacy to such claims and render it easier for other States to intervene

68
See L.C. Buchheit, Secession, the Legitimacy of Self-determination, New Haven: Yale
University Press (1978), 198.
69
C. Tomuschat, “Protection of Minorities under Article 27 of the International
Covenant on Civil and Political Rights”, in R. Bernhardt et al, Völkerrecht als
Rechtsordnung, internationale Gerichtsbarkeit, Menschen: Festschrift für Hermann
Mosler, Berlin: Springer Verlag (1983), 949, fn. 103; also id., “Self-determination in a
Post-colonial World”, in id., ed., Modern Law of Self-determination, Dordrecht: Martinus
Nijhoff (1993), 1, 9: “… if a State machinery turns itself into an apparatus of terror
which persecutes specific groups of the population, those groups cannot be held
obligated to remain loyally under the jurisdiction of that state”.
70
This division is handily illustrated in the various contributions to M.G. Kohen, Secession,
Cambridge: Cambridge University Press (2006), with four chapters supporting and
four chapters opposing, including the editor himself, at ten.
71
J. Summers, Peoples and International Law, Leiden: Brill (2007), 347.
72
P. Hilpold, “Self-determination in the 21st Century – Modern Perspectives for an Old
Concept”, 36 Israel Yearbook on Human Rights (IYHR) (2005) 247, 269.

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 Remedial Self-determination
in favour of the secessionists but still it would not make much sense to
speak about a ‘right to secession’.
While the question of repression or exclusion being constitutive of
a new, remedial self-determination status in the sense of secession is
therefore not yet clearly settled, it is at least this legitimising effect
that can already be clearly observed. This is particularly evident in
relation to the Kosovo episode. In that instance, the UN Security
Council initially insisted on the maintenance of the territorial
integrity of Yugoslavia. However, acting under Chapter VII, the
Council required at least the restoration of wide-ranging self-
governance for Kosovo.73 The situation changed after the Belgrade
government forcibly displaced approximately half of the ethnic
Albanian majority population from Kosovo, internally displacing a
large number of those who remained. Upon the conclusion of
NATO hostilities, the UN Security Council removed from Belgrade
any effective authority over Kosovo and, acting under Chapter VII,
required the inauguration of a ‘final status’ process for Kosovo after
a period of interim administration.74 The UN administration in
Kosovo then launched the policy of ‘standards before status’,
presenting Kosovo with the option of independence provided it
complied with requirements of good governance.75 Negotiations
about final status were conducted throughout 2006. The proposal
for a settlement that was eventually presented by the UN Special
Envoy Martti Ahtisaari was accepted by Kosovo but refused by
Belgrade. That proposal was accompanied by a recommendation of
the Special Envoy, endorsing independence. This recommendation
was based on the recent history of the region: 76
73
UN Security Council resolutions 1160 (1998), 31 March 1998, S/RES/1160 (1998);
and 1199 (1988) 23 September 1998, S/RES/1199 (1998). Texts available at
http://www.un.org/peace/kosovo/98sc1160.htm and http://www.un.org/peace/
kosovo/98sc1199.htm respectively, accessed 3 November 2008.
74
UN Security Council Resolution 1244 (1999), 10 June 1999, S/RES/1244 (1999). Text
available at http://daccessdds.un.org/doc/UNDOC/GEN/N99/172/89/PDF/
N9917289.pdf ?OpenElement, accessed 3 November 2008.
75
See M. Weller, “The Vienna Negotiations on the Final Status for Kosovo”, 84
International Affairs 4 (2008), 659.
76
UN doc. S/2007/168, 26 March 2007, para 15.

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 Escaping the Self-determination Trap
In unanimously adopting resolution 1244 (1999), the Security Council
responded to Milosevic’s actions in Kosovo by denying Serbia a role in its
governance, placing Kosovo under temporary United administration and
envisaging a political process designed to determine Kosovo’s future.
The combination of these factors makes Kosovo-s [sic.] circumstances
extraordinary.

In view of these extraordinary factors, the Special Envoy found

that “autonomy of Kosovo within the borders of Serbia – however
notional such autonomy may be – is simply not tenable”.77 Instead,
independence would need to be granted, if necessary against the
views of Serbia.
The Security Council was ultimately unable to endorse this
recommendation. However, Kosovo’s eventual declaration of
independence after almost another year of attempting to generate
a negotiated solution was greeted with understanding in the
Council by a significant number of states, in part with reference to
the history of Kosovo’s previous exclusion from political
representation and the repression of its ethnic Albanian
population. Costa Rica, for instance, noted that after very careful
legal consideration of the issue, it had felt impelled to respond to
the will of the people of Kosovo, “a people who find it impossible
to live together with the Serb majority in the same country after the
1998 campaign of ethnic cleansing”.78
While Kosovo’s independence also met significant opposition in
the Council, over 50 states have now recognised Kosovo. This
figure is likely to rise further. It is also noteworthy that there have
been very few statements to the effect that Kosovo’s independence
is in some way unlawful. Outside of the principal protagonists,
even states that are hesitant about independence have tended to
refer to general implications for international relations, rather than
identifying a breach of a legal rule as might have been the case
otherwise. While it was noted above that opposed unilateral
independence would not violate international law if no offence
77
Ibid., para 7.
78
UN Security Council meeting 5829, 30 January 2008, UN doc. S/PV.5829, 17.

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 Remedial Self-determination
against jus cogens was involved, states have nevertheless traditionally
advanced arguments of this kind. That was not generally the case
in this instance. Hence, it is once again confirmed that statehood
realised under these circumstances is not unlawful as such. Indeed,
the background of repression and exclusion has made it, in the
view of a large number of states, politically necessary and legally
legitimate, if not desirable.
It is also interesting to note that Russia has chosen to embrace
the doctrine of remedial secession, despite its vulnerability in the
matter in relation to Chechnya, and despite its initial rejection of
this argument in relation to Kosovo. Within a period of only a few
months, it deployed both lines of argument concerning remedial
secession. Russia first relied on the doctrine of representation, even
invoking the expansive but controversial interpretation of the
Friendly Relations Declaration when justifying its recognition of
Abkhasia and South Ossetia:79
…. Taking into account the appeals of South Ossetian and Abkhaz
peoples, of the Parliaments and Presidents of both Republics, the opinion
of the Russian people and both Chambers of the Federal Assembly, the
President of the Russian Federation decided to recognize the
independence of South Ossetia and Abkhazia and to conclude treaties of
friendship, cooperation and mutual assistance with them. Making this
decision, Russia was guided by the provisions of the Charter of the United
Nations, the Helsinki Final Act and other fundamental international
instruments, including the 1970 Declaration on Principles of
International Law concerning Friendly Relations among States. It should
be noted that in accordance with the Declaration, every State has the duty
to refrain from any forcible action which deprives peoples of their right to
self-determination and freedom and independence, to adhere in their
activities to the principle of equal rights and self-determination of
peoples, and to possess a government representing the whole people
belonging to the territory. There is no doubt that Mikhail Saakashvili’s
regime is far from meeting those high standards set by the international
community.
79
Statement by the Ministry of Foreign Affairs of Russia, 26 August 2008. Doc. 1246-26-
08-2008.Text available at http://www.un.int/russia/new/MainRoot/docs/off_news/
260808/newen1.htm, accessed 3 November 2008.

67
 Escaping the Self-determination Trap
Of course, in that instance, it was principally Russia that had
precluded the establishment of an agreement providing for the full
inclusion of Abkhasia and South Ossetia within the Georgian
political system. Georgia had offered detailed provisions on
representation for both territories by way of wide-ranging
autonomy.80 In view of Russia’s obstruction of an autonomy
settlement, it was spurious to refer to the lack of representation of
the two territories in the overall Georgian state.
In fact, Russia also invoked the second branch of the argument
concerning remedial secession, referring to purported attacks by
the Georgian military against the civilian population:81
By the aggressive attack against South Ossetia on the night of 8 August
2008, which resulted in numerous human losses, including among the
peacekeepers and other Russian citizens, and by the preparation of a
similar action against Abkhazia, Mikhail Saakashvili has himself put paid
to the territorial integrity of Georgia. Using repeatedly brutal military
force against the peoples, whom, according to his words, he would like to
see within his State, Mikhail Saakashvili left them no other choice but to
ensure their security and the right to exist through self-determination as
independent States.

This argument suggests that active mistreatment or repression of a

population gives rise to a right to remedial secession, although it is
again doubtful whether the facts of the particular case supported
its invocation.
The EU opposed Russia’s action in this instance. The states of
the EU demanded “that a peaceful and lasting solution to the
conflict in Georgia must be based on full respect for the principles
of independence, sovereignty and territorial integrity recognised by
international law, the Final Act of the Helsinki Conference on
Security and Cooperation in European and United Nations
Security Council resolutions. In this context, the Council deplores

80
See M. Weller and J. Wheatley, The War in Georgia: Power Politics and the Failure of Conflict
Prevention, London: Hurst Publishers (forthcoming); see also the presentation below, in
section VIII.
81
See Statement by Russian MFA, supra n. 79.

68
 Remedial Self-determination
any action that runs contrary to a solution based on these
principles”.82 However, as will be noted below, the EU effectively
started to take action that contributed to the stabilisation of the
situation that had been forcibly created.83 In any event, the
rejection of the Russian claims, muted though it was, did not
address the existence or otherwise of the doctrine of remedial self-
determination. Instead, it appeared to focus on the absence of facts
in this instance that might warrant its application.
It remains to be seen whether possible abuse of the doctrine of
remedial secession will dampen international enthusiasm for its
further development. The forthcoming advisory proceedings in the
International Court of Justice concerning Kosovo will offer useful
crystallisation of state practice in this respect. At a conceptual level,
the doctrine certainly represents a logical extension of classical self-
determination. That doctrine recognises that certain types of
government, however effective, cannot claim to represent certain
types of populations. As noted above, it is widely accepted that, in
addition to colonialism, this includes alien occupation and racist
regimes. Remedial self-determination concerns further cases where
a population is excluded from political participation in the state or
is severely mistreated, on grounds of its ethnic appurtenance.

82
Council of the European Union, Council Conclusions on Georgia, 2889th External
Relations Council meeting, Brussels, 15/16 September 2008.
83
See section XIII below.

69