I.

Introduction

Self-determination kills. Self-determination conflicts are among the

most persistent and destructive forms of warfare. Given the
structural inequality between an armed self-determination
movement and the opposing central government, the ‘national
liberation movement’ will often resort to irregular methods of
warfare, possibly including terrorist tactics. Governments tend to
respond with disproportionate force to challenges of this kind. A
spiral of violence may develop leading to profound destabilisation
of societies placed at risk of disintegration, as seen in Sri Lanka or
Sudan. And, due to the doctrine of non-intervention, international
actors are traditionally hesitant to involve themselves in attempts to
bring about a settlement of the conflict.
At present, there are about 26 ongoing armed self-determination
conflicts.3 Some are simmering at a lower level of irregular or
terrorist violence, while others take the form of more regular
internal armed conflict, with secessionist groups maintaining
control over significant swathes of territory to the exclusion of the
central government. In addition to these active conflicts, it is
estimated that there are another 55 or so campaigns for self-
determination that might turn violent if left unaddressed, with
another 15 conflicts considered provisionally settled but at risk of
re-ignition.4
The powerful force of nationalism or ethnic entrepreneurship
alone does not explain the explosive nature of self-determination
claims. At the structural level, the very doctrine of self-
determination contributes to the fact that, traditionally, few existing
or new conflicts were addressed. Instead, such conflicts have often
seemed beyond resolution. For the doctrine of self-determination
3
D. Quinn, “Self-determination Movements and their Outcomes”, in J.J. Hewitt, J.
Wilkenfeld and T.R. Gurr, Peace and Conflict 2008, Boulder: Paradigm Publishers (2007),
33.
4
Ibid., 35, 38.

13
 Escaping the Self-determination Trap
has traditionally been seen as an all-or-nothing proposition. True,
self-determination has numerous layers of meaning, which include
a right to democratic participation for individuals, certain human
rights entitlements for minorities and additional benefits for
indigenous peoples. But at the sharp end, where opposed unilateral
secession is concerned, the doctrine in its simplicity has
exacerbated conflict, rather than helping to resolve it.5
International legal rules are made by governments.
Governments have an interest in perpetuating the legitimising
myth of statehood based on an exercise of the free will of the
constituents of the state – their own legitimacy depends on it. It is
therefore accepted that self-determination “is one of the essential
principles of contemporary international law”.6 But while
embracing the rhetoric of free will and self-constituting states,
governments have simultaneously ensured that the legal right to
self-determination is strictly rationed and cannot ever be invoked
against the state they themselves represent. As was famously
expressed in a United Nations (UN) report on the subject of self-
determination:7
The principle of equal rights and self-determination … does not grant an
unlimited right of secession to populations living in the territory of an
independent sovereign state …
The right of secession unquestionably exists, however, in a special, but
very important case: that of peoples, territories and entities subjugated in
violation of international law. In such cases, the peoples have the right to
regain their freedom and constitute themselves and independent
sovereign states.

Of course, in this context it is important to note one crucial

distinction. This concerns secession by right in contrast to secession
in fact.
5
For an in-depth discussion of this problem cf. Weller, “The Self-determination Trap”,
supra n. 2.
6
Eastern Timor case, 1995 ICJ 102.
7
A. Cristescu, “The Right to Self-determination, Historical and Current Development
on the Basis of United Nations Instruments”, E/Cn.4/sub.2/404/Rev.1, 1981, para.
173.

14
 Introduction
There is a well-established rule of international law protecting
the territorial integrity and unity of states. For instance, even
UN Security Council Resolution 1514 (XV), which first enshrined
the principle of self-determination as classically understood,
determined that:8
Any attempt aimed at the partial or total disruption of the national unity
and the territorial integrity of a country is incompatible with the purposes
and principles of the Charter of the United Nations.

Governments may at times wish to claim that this obligation is not

only directed at other states, but also constrains the acts of those
within existing states, seeking secession. However, it is generally
understood that “the existence or disappearance of the state is a
matter of fact”.9 Therefore, it is perfectly possible for a new state to
come into being through secession, even if it does not enjoy a
positive right to self-determination. Effective statehood generated
in this way does not offend the rule of territorial unity. As Professor
Crawford argues persuasively:10
In particular, the reason why seceding groups are not bound by the
international law rule of territorial integrity is not that international in
any sense favours secession. It is simply that such groups are not subjects
of international law at all, in the way that states are, even if they benefit
from certain minimum rules of human rights and humanitarian law. …
[T]hus international law, both in principle and as evidenced in state
practice, favours the territorial integrity of the predecessor state. It does
so, not in the sense of offering any ultimate guarantee against separation
or dissolution, but in the sense that for significant and often very
substantial periods of time, it allows the central government to seek to
preserve the territorial integrity of the state. …

The difference therefore is that an entity that can invoke the right to
self-determination can secede, and it is legally privileged during that
8
Para. 6.
9
Opinion No. 1 of the Badinter Arbitration Commission, para. 1 (c), 31 International
Legal Materials (ILM) (1992), 1497ff.
10
J. Crawford, “The Right of Self-determination in International Law: Its Development
and Future”, in P. Alston (ed.) Peoples’ Rights, Oxford: Oxford University Press (2001),
50.

15
 Escaping the Self-determination Trap
process. Hence, a colony enjoys legal personality before it gains
independence, it must not be repressed during its attempt to
administer the act of self-determination, it may resist repression, etc.
On the other hand, an entity that obtains independence merely
through effectiveness will remain exposed to possible forcible re-
incorporation by the central state until its status is resolved through
agreement between the parties or by way of widespread recognition.
Given the powerful nature of this privilege, self-determination in
the sense of secession has only been applied to classical colonial
entities and closely analogous cases.11 For instance, while Chechnya
might want to argue that it was forcibly occupied by a metropolitan
power during the age of imperialism for the purpose of economic
exploitation (a layman’s working definition of colonialism), it
nevertheless did not qualify for colonial self-determination.
Unsurprisingly, the Russian Federation, and many other states
faced with an equivalent claim, made sure that the doctrine of self-
determination was framed to apply only in the classical and
narrowly defined circumstances of salt-water colonialism that
practically no longer exist.12
Even in relation to such traditional colonies, the right to self-
determination can only be exercised within the boundaries
established by the colonial power – in that way it does not
overcome the effects of colonialism, but the self-determination
entity itself is defined by it.13 Furthermore, the right is of singular
application. As soon as a colony has gained independence, it will
itself start defending its own territorial integrity with utmost vigour.
There is no secession from secession.14 And when armed self-

11
This includes cases of armed occupation, racist regimes (formerly South Africa) and
alien domination (Palestine), in addition to instances of secondary colonialism (Western
Sahara, formerly East Timor).
12
See, e.g., J. Crawford, The Creation of States in International Law, Oxford: Oxford
University Press (2nd ed., 2007).
13
E.g., OAU Resolution AGH/Res.16.1 (1964); Case Concerning Frontier Dispute
(Burkina Faso-Mali), 1986 ICJ 554; Badinter Opinion No. 2, International Legal
Materials 31 (1992) 1497ff.
14
Badinter Opinion No. 3, id., 1499ff.

16
 Introduction
determination conflicts erupt outside the colonial context, there
emerges a legal inequality with significant practical consequences.
Colonial self-determination movements are entitled to establish
national liberation movements, and the international system is
twisted in their favour to help them overcome the last vestiges of
colonialism.15 Thus, other rebel movements hiding in the deserts
and jungles of the world will also inevitably lay claim to the title of
‘national liberation’. However, in their case, the self-determination
privilege does not apply. Instead, the international system is
structured in a way that actually assists the central state in ensuring
their defeat. However just their cause, groups fighting on behalf of
suppressed and tortured peoples outside of the colonial context are
classified as secessionist rebels and, potentially, terrorists.
Hence, they can be engaged with minimum international legal
restraint, under the very legal order of the state from which they
seek to escape. This view was already expressed during the League
of Nations period, even before the right of self-determination was
firmly recognised in international law. As an international
Committee of Jurists held in relation to the attempt of the Aaland
Islands, almost entirely inhabited by Swedish-speakers, to separate
from Finland:16
Positive International law does not recognize the right of national groups,
as such, to separate themselves from the State of which they form part by
simple expression of a wish, any more than it recognizes the right of other
States to claim such as separation. Generally speaking, the grant or refusal
of the right to a portion of its population of determining its own political
fate by plebiscite or by some other method, is, exclusively, an attribute of
15
Genuinely colonial self-determination entities enjoy legal personality even before
administering the act of self-determination. They have a right to territorial unity, to be
free from the use of force and repressive measures, they may ‘struggle’ through the
means of a national liberation movement and arguably receive international support
in that struggle. They can also unilaterally bring into application the law of international
armed conflict, instead of the much more limited law of internal armed conflict that
covers domestic conflicts (cf. Weller, “The Self-determination Trap”, supra n. 2).
16
Report of the International Committee of Jurists Entrusted by the Council of the
League of Nations with the Task of Giving an Advisory Opinioni upon the Legal
Aspects of the Aaland Islands Question, LNOJ, Sp. Suppl. No. 3, October 1920.

17
 Escaping the Self-determination Trap
the sovereignty of every State which is definitively constituted. ... Any
other soluton would ... involve the risk of creating difficulties and a lack of
stability which would not only be contrary to the very idea embodies in
the term ‘State’, but would also endanger the interests of the international
community.

It is interesting, therefore, that a balancing between the interests of

the population concerned and the need to maintain international
stability and peace was undertaken even then. This approach has
persisted to this day, as evidenced by an important decision of the
Canadian Supreme Court:17
[I]nternational law places great importance on the territorial integrity of
national states and, by and large, leaves the relation of a new state to be
determined by the domestic law of the existing state of which the seceding
entity presently forms a part. Where, as here, unilateral secession would
be incompatible with the domestic constitution, international law is likely
to accept that conclusion.

The attempt to address the fate of those seeking to escape from the
domestic jurisdiction of a state solely through that jurisdiction is of
course not very promising. The traditional abdication of
international law in such instances will tend to remove the option
of constructive action at the international level to help manage the
identity crisis of the state under threat. As Hurst Hannum notes:18
Nevertheless, the continued refusal of the international community to
apply self-determination norms when they conflict with the statist norm of
territorial integrity only underscores to sub-state groups the perceived
irrelevance of international law to the problems faced by minorities and
indigenous peoples throughout the world.

This irrelevance, generated through the exclusive application of

self-determination in the sense of possible secession in the colonial
context, applies in at least three sets of circumstances:
17
Reference Re Secession of Quebec, 2 SCR. (1998) 217. Text available at http://
www.intstudies.cam.ac.uk/centre/cps/documents_canada_quebec.html, accessed 3
November 2008.
18
H. Hannum, Autonomy, Sovereignty and Self-determination: The Accommodation of Conflicting
Rights, Philadelphia: University of Pennsylvania Press (1990), 473.

18
 Introduction
• Cases arising outside of the colonial context (for example, Chechnya,
Corsica, the Basque country, Kosovo, etc). These are cases where
the concept of self-determination in the sense of secession does
not apply at all, given the lack of a colonial nexus.
• Challenges to the territorial definition of former colonial entities (for
example, Bougainville, Sri Lanka, the Philippines, Burma, India
in relation to tribal peoples). These are cases where a former
colony exercised the right to self-determination, but ethnic
movements emerging within the newly independent state seek
separation.
• Challenges to the implementation of colonial self-determination (for
example, Eritrea, Somaliland, Kashmir, perhaps Southern
Sudan, and the Comoros and Mayotte). These are cases where it
is argued that the doctrine of uti possidetis was wrongly applied at
the point of decolonisation, or that an entity was wrongfully
incorporated into the newly independent state.
In fact, while decolonisation has been applied in 72 cases of non-
self-governing territories and 11 trust territories since 1945, this
figure is nearly matched by the number of 78 major violent self-
determination conflicts that have arisen out of the colonial context.
Overall, the all-or-nothing game of self-determination has helped
to sustain conflicts, rather than resolve them. Self-styled self-
determination movements see no alternative to armed struggle or
to the use of terrorist strategies to achieve their aims. Central
governments see little alternative to violent repression. Generally,
self-determination conflicts will therefore terminate only once the
government has won a decisive victory against the secessionist
entity, as was the case for instance in relation to Katanga and Biafra
in 1963 and 1969 respectively.19 Other conflicts may persist for
decades – it is estimated that the 26 presently ongoing self-

19
An exceptional case is Bangladesh, where independence was obtained, albeit as a
consequence of an armed intervention by India.

19
 Escaping the Self-determination Trap
determination conflicts have already lasted for an average of 27
years each. 20
Of course, there is a third way between victory and protracted
fighting. This is the option of achieving a settlement. However,
during the Cold War years, only a handful of the numerous ongoing
self-determination conflicts were settled. Most either ended in a
decisive victory for the government or led to a protracted stalemate
that was detrimental to both sides.
With the end of the Cold War, this situation changed. A new
climate set in, presenting an opportunity to reassess the concepts of
state sovereignty and self-determination, while, simultaneously, new
challenges to the traditional doctrine of territorial unity emerged.
First, there was a profusion of new self-determination conflicts
triggered by the unfreezing of Cold War blocs. These risked
causing regional destabilisation, especially in Europe. Hence,
settlements were imposed in relation to some of them, in particular
the former Yugoslavia. Second, long-running conflicts in other
regions were finally starved of assistance from their former Cold
War supporters. A settlement suddenly became an attractive option
to both sides, especially as a continuation of the conflict damaged
the economic interests of both the central government and
secessionist regions.21 This climate of ‘a new beginning’ also
affected other protracted conflicts, such as Northern Ireland. The
parties used this momentum to escape a mutually damaging
stalemate through settlement. Hence, since the end of the Cold
War in around 1988, at least 32 self-determination settlements have
been achieved.22 These exhibit innovative attempts of addressing
20
M.G. Marshall and T.R. Gurr, Peace and Conflict 2005, Centre for International
Development and Conflict Management, Maryland: University of Maryland (2005),
27.
21
For instance, the wish to exploit the resources of South Sudan significantly contributed
to the conclusion of the Machakos Protocol of 20 July 2002 and subsequent
instruments. All texts available in full at http://www.intstudies.cam.ac.uk/centre/
cps/documents_sudan.html, accessed 3 November 2008.
22
For all self-determination agreements and related documents listed below, see the
Cambridge-Carnegie document archive at http://www.intstudies.cam.ac.uk/centre/
cps/documents.html, accessed 3 November 2008.

20
 Introduction
the self-determination dimension underlying the conflict. There are
another 10 draft settlements that have either not yet been adopted,
or have been rejected by the one or other party for the moment, with
a strong likelihood of resurrection of the agreement.23 The draft
settlements also shed light on these new approaches to the settlement
of self-determination conflicts that are being tried out at present.
This new climate was summarised by the then UN Secretary-
General in his influential Agenda for Peace document:24
The time of absolute and exclusive sovereignty, however, has passed; its
theory was never matched by reality. It is the task of leaders of States
today to understand this and to find a balance between the needs of
good internal governance and the requirements of an ever more
interdependent world. Commerce, communications and environmental
matters transcend administrative borders; but inside those borders is
where individuals carry out the first order of their economic, political and
social lives. The United Nations has not closed its door.

While this message sounded like an acknowledgement that a

new approach to self-determination might be forthcoming, the
Secretary-General continued:25
Yet if every ethnic, religious or linguistic group claimed statehood, there
would be no limit to fragmentation, and peace, security and economic
well-being for all would become ever more difficult to achieve. … One
requirement for solutions to these problems lies in commitment to human
rights with a special sensitivity to those of minorities, whether ethnic,
religious, social or linguistic.

The attempt to address the concerns of ethnic communities

through human rights, and minority rights provisions represented
only a modest progression in thinking on the subject. Indeed, as
23
These include further tribes in Burma and India, settlements for Corsica, Cyprus,
Kosovo, Abkhasia, South Ossetia, Transdniestria, Nagorno-Karabakh, Western Sudan
(Darfur), Sri Lanka and Thailand. One might also include the settlement plan for
Western Sahara, although this is the last remaining major outstanding case of colonial
self-determination, alongside the special case of Palestine.
24
UN Secretary-General, An Agenda for Peace, UN doc. A/47/277, 17 June 1992, para.
17f.
25
Ibid.

21
 Escaping the Self-determination Trap
will be noted in sections VII and VIII of this study, this has been
supplemented by increasing emphasis on presenting minority
groups with autonomy solutions, or attempts to glue states back
together after violent secessionist or ethnic conflict by using
purportedly indissoluble federations or confederations. However,
what has gone unnoticed thus far is that the spectrum of settlement
opportunities now also quite clearly extends to self-determination
in the sense of secession outside of the colonial context.
This monograph will first illuminate the restrictive nature of the
doctrine of self-determination. It will then turn to relatively new
concepts, such as constitutional self-determination and remedial
secession. Finally, the remainder of the book will be devoted to the
analysis of recent settlement practice in the area, addressing the
question of whether this profusion of settlements has helped to
overcome the damaging consequences of the restrictive doctrine of
self-determination for the international system.

22