Academic journal article Asia Pacific Law Review

The Secessionist Movement in the Southernmost Provinces of Thailand: A View from the New Haven School of International Law

Academic journal article Asia Pacific Law Review

The Secessionist Movement in the Southernmost Provinces of Thailand: A View from the New Haven School of International Law

Article excerpt

I. Introduction

[H]istorical territorial grievances are so ancient and so plentiful on all sides that they cannot be disentangled in any meaningful way ... [and] ... Any attempt to resolve such problems by redrawing borders to fit a particular critical date reflecting a particular historical grievance is unlikely to succeed. The predominant contemporary response to this problem has been to expand the rights available to minorities, in the hope that by doing so their legitimate concerns can be met within the confines of existing states....1

It is more a problem than a solution to conceive of the right of selfdetermination as a legal entitlement to be decolonized and, as a plausible consequence, to secede. Although the quintessential aim of self-determination remains unchanged, the manner in which that aim can be reached is dynamic. How can one interpret the right of self-determination consistently with the peculiarities of time, place and social changes? The answer depends on the circumstances relating to a claim of self-determination. In the past, selfdetermination was expected to lead to independence through secession, in the mistaken belief that self-determination and independence are inseparable. Nowadays, there is also a common understanding that people can determine their destiny within their existing state framework. This is not to say that people are captives of their territorial states, but the territorial integrity of their states is critical to their survival. It was once convincingly stated that '[i]t is for the people to determine the destiny of the territory and not the territory the destiny of the people'.2 Nevertheless, that dictum cannot be widely construed to mean that people are entitled to determine the destiny of their territory unconditionally and arbitrarily.

Currently viewed as a human right, the right of self-determination per se does not give rise to unilateral and unconditional secession and should be exercised within the boundaries of existing states. While the deprivation of human rights can constitute a threat to peace,3 human rights per se cannot constitute a threat to territorial integrity. Accordingly, not until grossly violated may the right of self-determination, together with the violation of other fundamental human rights, pave the way for remedial secession as a measure of last resort. Self-determination may justify secession from states abusing their sovereign power if all of the following requirements are met: the denial of internal self-determination and/or grave violations of fundamental human rights; the existence of people whose major will is in favour of secession; and the exhaustion of all other mechanisms for peaceful settlement of disputes. Therefore, secession should not be considered an anachronism in every case. 'Like any authoritative decision system in a pluralistic society, international law presents itself in complementary sets in which paired norms call on the one hand for change and on the other for stability'.4 In a secessionary situation, while the violation of the right of self-determination and other human rights instigates an outcry for justice and change, a state's desire for territorial integrity reflects a call for stability. Since neither of the principles is absolute, the balance between the two needs to be maintained; the right of self-determination is limited by, inter alia, the principle of territorial integrity, and vice versa. 'If blind adherence to "territorial integrity" results only in deprivations of human rights in that territory, the regime has already lost its raison d'être'.5 Thus, it can be the case that the violated right of self-determination outweighs the principle of territorial integrity in order to promote and protect human dignity and human rights; decision makers should bear in mind the obsolescence of absolute sovereignty and territorial integrity.6

This article considers whether the findings above are applicable to the secession of the southernmost provinces of Thailand. …

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