To Break Free from Tyranny and Oppression: Proposing a Model for a Remedial Right to Secession in the Wake of the Kosovo Advisory Opinion

By Brewer, Evan M. | Vanderbilt Journal of Transnational Law, January 2012 | Go to article overview

To Break Free from Tyranny and Oppression: Proposing a Model for a Remedial Right to Secession in the Wake of the Kosovo Advisory Opinion


Brewer, Evan M., Vanderbilt Journal of Transnational Law


ABSTRACT

Too often states have invoked territorial integrity and nonintervention in defending abuses perpetrated against peoples within their borders. This practice must be stopped by embracing a robust remedial right to secession. Remedial secession takes place when an oppressed people creates an independent state by seceding from a state that denies its right to self-determination. It has been speculatively posited as an "extreme circumstances" possibility, but remedies to denials of the right to self-determination have not been clearly determined beyond the decolonization context. In the post-colonial era, international law has recognized the importance of fundamental human rights to such a great degree that the right to remedial secession now warrants assessment as a possible entitlement. The Kosovo Declaration of Independence and its adjudication before the ICJ showcased the tension between self-determination and territorial integrity, demonstrating that territorial integrity must not protect those committing egregious violations of human rights. This Note then proposes that the remedial right to secede should vest in a group that: (1) constitutes a "people," (2) has been systematically oppressed, (3) has been denied self-determination within the existing state, (4) freely chooses to secede, and (5) respects the rights to self-determination of other minorities. This proposal offers a last-resort way for a victimized people that has been denied its rights under international law to exercise self-determination.

TABLE OF CONTENTS

  I. INTRODUCTION: THE TENSION BETWEEN SELFDETERMINATION
     AND TERRITORIAL INTEGRITY
     COMPLICATES WHETHER AN OPPRESSED PEOPLE
     MAY SECEDE

 II. THE RIGHT TO SELF-DETERMINATION PERMITS SECESSIO
     ONLY IN EXTRAORDINARY CIRCUMSTANCES
     A. General Assembly Declarations Establish
        Self-Determination as a Decolonizing Principle
     B. The Namibia and Western Sahara Advisory
        Opinions Illustrate the Application of
        Self-Determination
     C. After Decolonization, the Right to Self-Determination
        Is Universal, but Lacks
        Remedial Mechanisms

III. SELF-DETERMINATION IS A FUNDAMENTAL HUMAN
     RIGHT THAT SYSTEMATIC OPPRESSION VIOLATES;
     SUCH VIOLATIONS MUST HAVE REMEDIES, EVEN
     AGAINST INVOCATIONS OF TERRITORIAL INTEGRITY
     A. Judge Cancado Trindade Champions
        Remedial Secession as Valid Exercise of
        Right to Self-Determination
        1. International Law
           Recognizes Fundamental Human Rights
           as International Rights on
           Par with Those of States
        2. The Inviolability of Fundamental Rights
           of Peoples Constitutes an
           Absolute Limit on Sovereignty, Reorienting
           the Hierarchy of International Law
        3. A State that Violates a People's
           Fundamental Rights May Forfeit Its
           Sovereign Privilege over Them, Creating
           a Right to Secession
     B. Judge Koroma Finds Remedial Secession to
        Threaten Territorial Integrity and the
        Stability of International Law
        1. Unilateral Acts to Form New States
           Breach Territorial Integrity and Violate
           International Law
     C. A Human Rights-Based Interpretation
        Permits Remedial Secession in Kosovo, While
        a State Sovereignty-Based Interpretation
        Rejects Secession

 IV. DRAFTING A REMEDIAL RIGHT TO SECESSION TO
     PROTECT THE RIGHTS OF OPPRESSED PEOPLES
     A. Asserting a Positive Right to Secession
        as a Last-Resort Mechanism to Exercise the
        Right to Self-Determination for Oppressed
        Peoples
     B. Kosovo's Claim to the Remedial Right
        Would Succeed Unless It Violated the Self-Determination
        of Minorities Within Its
        Borders
     C. Possible Separate Security Council and ICJ
        Pathways to Implement the Remedial Right

V. … 

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