THE RIGHT OF SECESSION IN INTERNATIONAL LAW: A NEW THEORY OF LEGITIMACY By GERRY J.SIMPSON LLB, Aberdeen University, Scotland, 1986 Dip.Legal Practice, Aberdeen University.1987 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA February 1989 (&) Gerry Simpson, 1989 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department The University of British Columbia Vancouver, Canada DE-6 (2/88) ABSTRACT This thesis develops a legal theory of secession based on international law and an original index of validity. Secession is the process by which a territorially discrete entity within a state achieves independence from that state. In this thesis a code of legality is devised which legitimizes secession in certain cases without advocating the breakdown of world order. The right of secession envisaged derives its force not from political concepts such as democracy, liberalism or socialism, but from the right in international law to self- determination. To this end, an historical introduction is offered which traces the historical roots of the right to self-determination and its earliest connection with secession. This study illustrates how the transformation of self-determination from political principle to legal right in the era of the United Nations and decolonization led to a restrictive interpretation of the concept. This interpretation, it is argued, has neglected the link between self-determination, human rights and the right to secede. iii Self-determination has consequently been drained of significance at the very moment when it should be in the vanguard of the quest for a world order based on respect for human rights. This study, therefore, has several purposes. First, a basis in international law for a right of secession is sought by analyzing the provisions of several United Nations Declarations on self-determination. Second, the humanitarian potential of the right of secession is realized by renewing the link between human rights and self-determination in a novel theory of legitimacy. Third, an index of validity is outlined by which the legitimacy of a particular secession can be ascertained using criteria which take into account political, economic and moral as well as legal factors. This index is referred to throughout the paper in five case studies which illustrate the varying practical consequences of applying this theory of legitimacy. In this way, a theory of secession is proposed which subscribes to the rules of international law and the realities of the international political system while providing a conceptual foundation for a humane world order. TABLE OF CONTENTS i. Title. ii. Abstract iv. Table of Contents vii. Acknowledgements Structure 1 CHAPTER ONE: INTRODUCTION 4 CHAPTER TWO: HISTORICAL RESUME 12 A. Introduction 14 B. Legal Scholars 20 C. Woodrow Wilson 22 D. Communism 25 E. The Right of Secession 29 F. Conclusion 3 0 CHAPTER TWO: A NOTE: THE AALAND ISLANDS 32 CHAPTER THREE: SELF-DETERMINATION:THE UNITED NATIONS.40 A. Introduction 42 B. Self-Determination and Decolonization..... 45 C. The United Nations and the Right of Secession 71 CHAPTER FOUR:ERITREA:THE NEW COLONIALISM & SECESSION.81 i. Abstract 83 A. Introduction: Neo-Colonialism and Secession 84 B. Eritrean History and Self-Determination ...87 C. Colonization 93 D. The United Nations and the Autonomy Compromise....97 E. Human Rights and the Right to secede 104 F. United Nations Law and the Eritrean Claim. .109 G. The Index of Validity 112 H. Conclusion .119 CHAPTER FIVE: BANGLADESH: A HUMANITARIAN BASIS 120 i. Abstract 123 A. Introduction 124 B. The Sources of Bangladesh's Quest for Secession...125 C. Success, Self-Determination and Secession 131 D. The Index of Validity.. 150 CHAPTER SIX:BIAFRA:SECESSION&THE AUTONOMY COMPROMISE.160 i. Abstract 163 A. Introduction 164 B. Colonialism to Secession 165 C. The Right to Secede 169 D. United Nations Law and the Biafran Claim 173 E. The Index of Validity 177 CHAPTER SEVEN: SCOTLAND AND QUEBEC 188 i. Abstract 190 A. Introduction 192 B. Scotland 195 C. Quebec 207 vi CHAPTER EIGHT: A NEW STANDARD OF LEGITIMACY 217 A. A New Standard of Legitimacy 219 B. The Index of Validity 232 I. Essential. Conditions. 233 II. Critical Variables 245 C. Conclusion........ 258 Bibliography 259 Acknowl edcf ement s This study was completed under the supervision of Professor Maurice Copithorne (UBC) whose comments throughout were greatly appreciated. Professor Douglas Sanders read a final draft and made several helpful comments. Without the financial aid of the Law Foundation of British Columbia and a bequest from the C.B. Davidson Fund at Aberdeen University, I would have been unable to make this study at UBC, in the beautiful city of Vancouver. I am therefore grateful for their generous support. Professor John Rankin of the University of Aberdeen was the inspiration behind my Masters Studies. Jo-Anne Dillabough cast a very critical eye over this study and deserves thanks for the long hours spent deciphering the grammatical vissicitudes of the early drafts. 1 Structure This work is divided into eight main parts. Part One is an Introduction in which I sketch the purpose of the study and briefly describe a theoretical basis for the right to i secede. In Part Two I provide an Historical Resume of the provenance of the principle of self-determination and the journey it had taken up to 1939. The period from 1945 to the present is looked at in Part Three, Self-Determination in the Acre of the United Nations; Decolonization and Secession. This section will delineate the basis for asserting a right to secession in international law. Part Four describes the ongoing attempt to secede by the Eritrean people in northern Ethiopia. This part, Secession and the New Colonialism, furnishes an argument for the renewal of the right to secede in cases of neo-colonialism and alien oppression. The elemental nature of human rights in the struggle for self- determination is addressed in Part Five, A Humanitarian Basis for Secession, which assesses the successful secession of Bangladesh from the rest of Pakistan in 1971. Biafra's failed attempt to secede from Nigeria is the subject of Part Six, Secession and the Autonomy Compromise. This section illustrates how rigid the standards are for a legitimate right of secession under the index of validity. Secession in Western Democracies is the title of Part Seven and its purpose is to show how the right of secession has only limited meaning within a democratic state. Quebec and Scotland are reviewed in this context. In the final part entitled The Index Of Validity: A Theoretical Conclusion, I posit my theory of legitimacy with the intention of regulating the exercise of the right of secession. A short concluding section completes the study. CHAPTER I INTRODUCTION 4 In recent decades international lawyers and academics have attempted to articulate principles which might provide the foundation for a humane world order. Often these constructs are either overambitious or impenetrably complex. The following study modestly proposes that an imaginative articulation of the, already existing, principle of self- determination will mark the first step towards a reorganization of the state system on the basis of a concern for human dignity and human rights. The academic and political communities have concentrated their attention on the interdependence of states within the international system. This preoccupation is partly justified by the increasing trend in recent years towards internationalism in the world, as evidenced the creation of many supranational and regional organizations. The economic integration of western Europe (European Economic Community) and the many economic and political alliances being forged world-wide are indicative of this movement towards regionlism. However, undermining this integrative process is a tendency in the opposite direction exemplified by the proliferation of organizations attempting to shape the world in an entirely different way. Primary among these groups are secessionist movements dedicated to the dismemberment of nation-states. Nationalism, once a potent force for 5 integration is now just as frequently disintegrative. This urge to fragment threatens a large number of states and is not exclusive to any one geographic area, political system or economic model. Secession, the political manifestation of this urge, is the subject of this study. To date the phenomenon of secession has not met with an adequate response from the international community nor has its centrality been sufficiently recognized by international lawyers and political theorists. In the light of this what is required is a legal theory of secession which incorporates an awareness of political realities. The purpose of this study is to develop a limited right of secession, derived from the right in international law to self-determination, that is congruent with a vision for a humane world order. The act of secession involves the separation of a discrete territorial unit from an established state and the creation of a new state. As such it offends fundamental norms of international law and basic principles of political organization. In this paper it is argued that there is a presumption against secession which can only be rebutted by a series of factors the presence of which stamp the secession as legitimate.