My remarks will cover three main points:
1. The clashing norms of international law enmeshed in the topic of statehood;
2. An examination of why international law has stagnated on issues pertaining to secession as evidenced in two recent International Court of Justice cases: the Kosovo advisory opinion (2010) and the Italy v. Germany case (2012);
3. Suggestions about necessary developments before this area of law can move forward, particularly as it relates to self-determination and secession.
THE CLASHING NORMS OF INTERNATIONAL LAW ENMESHED IN THE TOPIC OF STATEHOOD
There are two sets of international law norms that come into play in the statehood arena. These norms are often opposed to each other.
On one side are the norms of sovereignty, equality of states, territorial integrity, political independence, non-intervention, and the right of states to choose any form of government they wish. To this might be added the right of a foreign state to help a government put down rebels when so requested by that government, and the prohibition on foreign governments assisting rebels in other states. These last two norms can be seen in the ICJ's Nicaragua case (1986, Merits), although the recent Security Council authorizations with respect to Libya tend to cut against this older set of norms.
On the other side is the whole of the human rights movement emphasizing individual and group rights, and sometimes responsibilities, and moving away from the state-centered version of international law. These rights include, among other things, the right to participate in government; the right not to be discriminated against by one's government on the basis of race, religion, ethnicity, culture, language, gender, or disability; and various rights to due process, including the right not to be tortured; and finally the much discussed responsibility to protect, which, in some of its iterations, would permit intervention by other states when certain fundamental norms are violated by the state or when the state is unable to prevent the violation of such norms.
These two sets of international law norms vie for superiority when we examine the creation of new states arising out of claims based on self-determination, particularly claims of secession which lie at the far end of the spectrum of self-determination.
The early movement on the norms connected with the creation of new states came with the anti-colonial movement, so that now it is uncontroversial to assert that colonially governed peoples have the right to rule themselves as an independent state. The fight to independence is also evident in the much recited right of people suffering alien occupation, subjugation, or exploitation to separate and become independent, although courts and scholars seldom give examples. Beyond that, the norm of secession has stagnated. The few examples of successful secession, such as Eritrea or East Timor, are not considered sufficient to create a customary norm endorsing secession in similar circumstances.
AN EXAMINATION OF WHY INTERNATIONAL LAW HAS STAGNATED ON ISSUES PERTAINING TO SECESSION
Two recent ICJ cases exemplify the stagnation of international law relating to secession. First, the Kosovo advisory opinion (2010): having been asked by the UN General Assembly whether the declaration of independence by the provisional institutions of self-government in Kosovo were in accordance with international law, the Court first decided to issue an opinion. It then asked states for their views and received 37 briefs, further comments by 14 states, plus Kosovo, and oral statements by 28 states, plus Kosovo. The Court stated that the group that issued the declaration was merely an ad hoc group of citizens and that there is no international law with respect to ad hoc groups declaring independence. Hardly what one would call an enlightening opinion! The Court refused to examine the legal consequences of the declaration or "the validity or the legal effects of the recognition of Kosovo" by many states. …