A normative approach to state secession : in search of a legitimate right to secede

[摘要] ENGLISH ABSTRACT: Secession is one of the oldest and probably more controversial themes of publicinternational law. The potential of a right to secede draws even more controversyamongst international law scholars and lawyers alike. This research merges classicalinternational law perspectives on secession and the right to secede in particular,within a contemporary setting. Two research questions are answered: (i) Does alegitimate right to state secession exist under contemporary international law; if so,what are its normative characteristics? (ii) What is the position of the InternationalCourt of Justice (ICJ) in the realisation of a legitimate right to secede, considering itsopinion in the Kosovo-case?The work follows a normative methodological approach in tackling and presentingthe arguments towards and against the legitimacy of the right to secede. This allowsfor a clear interrogation of the norms constituting classic international law against therealities of an evolving pedagogy. Classical international law is traditionally statecentred,primarily due to the 1648 legacy of the Treaty (Peace) of Westphalia.However, contemporary international law has come to incorporate the roles of nonstateactors and even individuals. Consequently, the impact of secession extendsbeyond traditional international law norms like; territorial integrity and sovereignty,nationalism and uti possidetis. Moving forward, a critical inclusion within modernconceptualisation of secession needs to be considerations like, the right to selfdeterminationand the promotion of human rights.The research departs with a clear comprehension of the status quo of a generaltheory of secession. The identification of a prescriptive general theory of secessionremains rather elusive. However, cogent arguments are presented for theestablishment of a right to secede with a sufficient legal foundation to support ageneral theory and find effective enforcement for the right.The arguments for the right to secede are rooted within a sound conceptualframework and historical context. In dealing with the normative characteristics of theright to secede, the historic reasoning of Shaw is utilised in order to establish a legalprocess for secession. This reasoning is applied in the presentation of the municipalmanifestation of the right to secede, which traditionally is found in the constitutionalentrenchments of the right. The relationship between the right to secede and selfdeterminationis presented through a balancing of the components that constitute theright to self-determination. Following the Canadian Supreme Court's contribution onthe right to self-determination in the Quebec-case, the aspirations of peoples for selfdeterminationneeds to follow this dual view of self-determination as consisting of theright to internal and external self-determination.The contemporary position of the right to secede under international law is bestillustrated in the ICJ treatment of secession in its Kosovo Opinion. The focus here is to present new insights into the impact of unilateralism and multilateralism in theinteraction with secession. Ultimately, this research in its normative methodologicalapproach presents the arguments both ancient and contemporary for the legitimatepotential of a right to secede.

[发布机构] Stellenbosch University