‘No peace can last, or ought to last, which does not recognize and accept the principle that governments derive all their just powers from the consent of the governed, and that no right anywhere exists to hand peoples about from sovereignty to sovereignty as if they were property,” said President Woodrow Wilson of America in a 1917 address.

The issue of unilateral secession has always been controversial. The recent case of Catalonia only highlights the continuing confusion in dealing with the issue. International law contains neither a right of unilateral secession nor the explicit denial of such a right. It’s no doubt true that international law places great importance on the territorial integrity of nation states. The creation of new states is generally determined by the domestic law of the existing state from which the new entity secedes.

But the right of self-determination allows, in certain circumstances, to secede unilaterally. Article 1 of the United Nations Charter mandates developing friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; also Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights both declare that “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

Even the UN General Assembly’s Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res. 2625 (XXV) (Declaration on Friendly Relations, 1970), states that by virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter, all people have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.

After the end of World War II, many new countries came into existence using the right to self-determination. But creation of new countries thereafter through unilateral secession has been a very difficult task. To take the case of Kosovo, following the Kosovo War, UN Resolution 1244 (1999) established an international civil and security presence in Kosovo with full civil and political authority and sole responsibility for the governance of Kosovo. As per UNMIK regulation 1999/1 all legislative and executive authority with respect to Kosovo was vested in UNMIK and exercised by the Special Representative. Thus an international territorial administration was set up and the primary reasons were humanitarian purposes, stabilisation of Kosovo and for the re-establishment of a basic public order. The interim administration was thus designed to suspend temporarily Serbia’s exercise of its authority flowing from its continuing sovereignty over the territory of Kosovo.

Kosovo’s declaration of independence was adopted on 17 February 2008 by the Assembly of Kosovo. In the Kosovo Advisory Opinion (2010, ICJ) the ICJ was asked to opine on whether or not the declaration of independence was in accordance with international law. The Court observed that the purpose of the legal regime established under resolution 1244 (1999) was to establish, organise and oversee the development of local institutions of self-government in Kosovo under the aegis of the interim international presence. The purpose of resolution 1244 was thus to establish a temporary, exceptional legal regime which superseded the Serbian legal order and which aimed at the stabilisation of Kosovo and that it was designed to do so on an interim basis.

Terming the declaration of independence as not illegal, it observed that the declaration of independence reflected the awareness of its authors that the final status negotiations had failed and that a critical moment for the future of Kosovo had been reached. The procedure employed in relation to the declaration differed from that employed by the Assembly of Kosovo for the adoption of the legislation. Also the declaration was signed by all those present when it was adopted, including the President of Kosovo who was not a member of the Assembly of Kosovo. The self-reference of the persons adopting the declaration of independence as “the democratically-elected leaders of our people” immediately preceded the actual declaration of independence within the text.

Again, the declaration was not forwarded to the Special Representative of the Secretary-General for publication in the Official Gazette and the silence of the Special Representative in the face of the declaration of independence of 17 February 2008 suggested that he did not consider that the declaration was an act of the Provisional Institutions of Self-Government designed to take effect within the legal order for the supervision of which he was responsible. Thus, the authors of the declaration of independence of 17 February 2008 did not act as one of the Provisional Institutions of Self-Government within the Constitutional Framework, but rather as persons who acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration and thus the declaration was held legal under International Law.

On the question whether the authors of the declaration of independence acted in violation of Security Council resolution 1244 (1999) the Court distinguished this case with that of Cyprus wherein the Security Council had reaffirmed its position that a “Cyprus settlement must be based on a State of Cyprus with a single sovereignty and international personality and a single citizenship, with its independence and territorial integrity safeguarded”. The Security Council thus set out the specific conditions relating to the permanent status of Cyprus. But in the case of Kosovo, under the terms of resolution 1244 the Security Council did not reserve for itself the final determination of the situation in Kosovo and remained silent on the conditions for the final status of Kosovo.

The Security Council had earlier condemned many declarations of independence, viz. Security Council resolutions 216 (1965) and 217 (1965), concerning Southern Rhodesia; Security Council resolution 541 (1983), concerning Northern Cyprus, and Security Council resolution 787 (1992), concerning the RepublikaSrpska. In all of those instances the Security Council was making a determination as regards the concrete situation existing at the time that those declarations of independence were made; the illegality attached to the declarations of independence thus stemmed not from the unilateral character of these declarations but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens).

The controversial Crimean referendum was held in 2014 to determine its future legal status. Though the referendum overwhelmingly supported the secession from Ukraine and joining Russia, the international community rejected the referendum primarily because the result was achieved by Russia’s use of or at least threat of force. A draft Security Council resolution seeking to declare the referendum as having no legal validity was vetoed by Russia. This declaration of independence was held illegal as International law clearly prohibit any change of legal status of a territory in violation of a peremptory norm.

In the Quebec Referendum case, the Supreme Court of Canada in Reference by the Governor in Council concerning Certain Questions relating to the Secession of Quebec from Canada [1998, Supreme Court of Canada] was asked to determine whether international law gave the National Assembly, legislature or government of Quebec the right to effect its secession from Canada unilaterally. It was also asked to determine whether a right to self-determination under international law existed which would give the National Assembly, legislature or government of Quebec the right to effect secession from Canada unilaterally.

The Supreme Court of Canada held that even a clear expression of self-determination by the people of Quebec would impose no obligations upon the other provinces or the federal government.  But the continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada as that would amount to the assertion that other constitutionally recognised principles necessarily trump the clearly expressed democratic will of the people of Quebec.

Failure of the duty to undertake negotiations and pursue them according to constitutional requirements undermine a new government’s claim to legitimacy which is generally a precondition for recognition by the international community.  Thus, a Quebec that had negotiated in conformity with constitutional principles and values in the face of unreasonable intransigence on the part of other participants at the federal or provincial level would be more likely to be recognized than a Quebec which did not itself act according to constitutional principles in the negotiation process.

The right to external self-determination, which entails the possibility of choosing (or restoring) independence, has only been bestowed upon two classes of peoples (those under colonial rule or foreign occupation), based upon the assumption that both classes make up entities that are inherently distinct from the colonialist Power and the occupant Power and that their ‘territorial integrity’, all but destroyed by the colonialist or occupying Power, should be fully restored (Cassese, Antonio.  Self-determination of peoples:  A legal reappraisal).

The other clear case where a right to external self-determination accrues is where the people are subject to alien subjugation, domination or exploitation outside a colonial context.The third but much disputed and controversial ground is when people are blocked from the meaningful exercise of the  right to self-determination internally, they are entitled, as a last resort, to exercise it by secession.

The Supreme Court observed that international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue its political, economic, social and cultural development. The people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination.

A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that integrity recognised by other states. But the Supreme Court further held that although there is no right under the Constitution or in international law to unilateral secession, that is secession without negotiation, this does not rule out the possibility of an unconstitutional declaration of secession leading to a de facto secession. The ultimate success of such a secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to various facts in determining whether to grant or withhold recognition.

Even if unilateral declarations of independence may not be illegal in all circumstances, the ICJ has rightly observed in the Kosovo Advisory Opinion that the illegality attached to certain declarations of independence arise not from the unilateral character of these declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens).

(The writers are Mumbai-based advocates and legal consultants)