Vol. 16 No. 8 (August, 2006) pp.617-621

 

SECESSION: INTERNATIONAL LAW PERSPECTIVES, by Marcelo G. Kohen (ed). Cambridge and New York: Cambridge University Press, 2006. 546pp. Hardback £70.00/$120.00. ISBN: 0521849284. E-book format. $96.00.  ISBN: 0511159307.

 

Reviewed by Lee P. Ruddin (LL.B: Liverpool); (MRes: London) and (PgCert: Sheffield). Email: leetherudster [at] aol.com.

 

While not practical to thrash out a treatise of all the essays “autonomously” (a pertinent utterance when reviewing a text deciphering such a theme) in this collection devoted to international law perspectives on SECESSION, edited by Marcelo Kohn, one does strive to appraise the full volume. The study offers a compilation of fourteen essays which unveils the pre-eminence of existing scholarship on secession examining “The Foundations of International Law” and “Their Impact on Secession and International and Domestic Practice.”

 

Contained within the first of the two pillars of this book (“encompassing a theoretical analysis”: p.x), individual chapters informatively introduce the theses of: secession and self-determination; terrorism and the right of self-determination; the question surrounding external intervention in secessionist causes; State “recognition” and the interesting (often disregarded) issue of secession and succession. The second column of the volume is region-specific (and state-centric: p.x) scholarly dissecting the history and law(s) governing secession in the locales of Africa, Asia and Pacific regions, Europe, Latin America, Canada, and Switzerland. 

 

The corollary to the demise of the U.S.S.R witnessed embryonic secessionist aspirations in tandem with the re-awakening of existing (though quiescent) separatist claims. The construction of a novel autonomous entity by way of separation from a territory (especially those “allergic” to the concept of secession: p.3) does raise grave difficulties challenging the very foundations of international law (pp.1, 3, for definition). The swell in UN membership from 51 in 1945 to 149 in 1984 (the corollary of colonialism) and then, from 151 in 1990 to 191 at present, explains an historical phenomenon, broadly termed secession (p.2) (as Daniel Moynihan predicted). This volume’s clear thesis unearths the role of law and politics in secession.

 

The State’s obligation from the international law perspective is to ensure democratic participation in public affairs to all its citizens within its internal structures. From the political viewpoint, nevertheless, a negative posture of a central government to addressing the issue [secession] democratically raised by parts of its population can have an important impact in the perception of this situation by third States (p.18).

 

Georg Nolte (Chapter Three) cites the dictum in the case of NATIONALITY DECREES IN TUNIS AND MOROCCO, whereby “The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relevant question; it [*618] depends on the development of international relations” (p.72). “Politics” cannot be overstated in “Secessionist” discussion (for recently, “international relations have generally placed emphasis on the respect for the territorial integrity [for example] of the Russian Federation” (p.370). For instance, in relation to “recognition,” Dugard and Raic (Chapter Four) state that, “it is essential to appreciate that political considerations do influence the decision and may prompt a state to recognize an entity prematurely or to refuse to grant it recognition” (p.98). This may be for the reason stated by Patrick Dumberry (Chapter Thirteen) that “legal arguments are neither completely decisive of the question nor totally irrelevant” (p.450) with “legal consequences flow[ing] from political facts” (p.437). Moreover, Photini Pazartzis (Chapter Eleven) underscores the timely need of reviewing a text of this nature for the LAW AND POLITICS BOOK REVIEW, writing that “Secession is often viewed more as a problem of politics than one of law” (p.355). 

 

The reader from the outset is made to comprehend the paradox of territorial integrity of the state with the right of self–determination. Such a contradiction is a problem with which the contributors struggle throughout the volume (p.6).  “We affirm the equal rights of peoples and their right to self–determination in conformity with the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of States” (pp.105, 310, 356).

 

The first chapter, by Christian Tomuschat, is a valid introduction to “Secession and self–determination.” Tomuschat opens with the enlargement ratione personae of the principle of self-determination for all peoples in the international community (though, “primarily designed to foster the decolonization process”: p.23). Tomuschat scholarly employs mini case-studies illustrating a battery of historical insight, for instance, highlighting the ground-breaking resolution adopted by the Organization of African Unity (OAU) in 1964 (p.27) with the later Security Council Resolution of 1244 (displaying recognition of a human community within a sovereign state enjoying a right to self-determination: p.34). Covering a vast repertoire of material, the chapter, is a lucid, educational and jargon-free opening, pulling no punches and intermittently criticizing the UN’s (deficient) role.        

 

The second chapter, according to the title and introduction, offers a most urgent essay on secessionist combatants and chiefly an examination of the “recent judgments concerning the banning of certain organizations as terrorist organizations in the United Kingdom” (p.54). The chapter’s opening is an illustrative baptism of fire whereby Andrew Clapham highlights the anti-Western ambivalence of Arab states (referencing both the Convention of the Organization of the Islamic Conference on Combating International Terrorism and the Arab Convention on the Suppression of Terrorism) in regard to permissible armed attacks aimed at liberation – though these provisions do not apply to acts prejudicing the [*619]  territorial integrity of any Arab state (p.47). Conversely, Clapham’s later pages suffer for being concerned too much with the “[in]compatibility” of UK domestic law with that of its international counterpart (p.55). Such a dogmatic view allied with a perpetual focus on compatibility leads to a repertoire of omissions on the effectiveness of UK banning orders leading the author to renounce (though not explicitly) the UK’s non-sheepish alignment with international treaties – regardless of the corollary of their static definition of “terrorism” in a post–9/11 and 7/7 world (p.61).    

 

Secessionist efforts and the provocation of external intervention is the focus of the third chapter (p.65). The historically-based essay succinctly examines the role of the UN and armed intervention by third states. Georg Nolte makes clear from the outset that, the “UN Charter was not written with secession conflicts in mind” (p.66). Accordingly, one must read into this that the powers of the UN apply equally to all situations concerning international peace and security – for there is no “special category as per UN law” (p.66).

 

In light of the International Court of Justice’s (ICJ) dictum and precedent of Northern Cyprus and Sri Lanka creating a “strong prima facie case that external armed interventions . . . are legal when carried out at the invitation of a government” (p.78), Nolte is correct in highlighting the question of permissibility of interventions by foreign forces at the invitation of the government. He later argues that “a government which is challenged by a force that has obtained the control of at least some part of the territory of the State has lost the necessary representativeness to act in the name of the State” (p.79).

 

“Recognition” is the theme of the fourth chapter. John Dugard and David Raic present a gripping addition to the volume; highlighting the implication(s) of “recognition” which serves “as an instrument for the validation of claims to statehood on the part of new entities” (p.94). The ethos of their treatise is provided by way of Hersch Lauterpacht, who famously described recognition of an entity as a State while others are denied such acknowledgement as a “grotesque spectacle” (p.97). The authors explicitly note the fact that “States do not regard themselves under a legal duty to recognize entities as States once they comply with the requirements of statehood” (p.98). Tackling such a predicament, Dugard and Raic consider both the “declaratory” and “constitutivist” schools of thought in developing their thesis (p.100). The UN procedure is seen in a favourable light (collective recognition of States through the UN) remedying the (arbitrary) “constitutivist” weakness, and thus rendering Lauterpacht’s “spectacle” (and the doctrine of non–recognition: ex injuria jus non oritur) “no longer a practical possibility” (p.100).

 

Chapters Five, Eight, Nine and Fourteen are written in French (provided only with the most infinitesimal of English translation) on a repertoire of topics, including the State as a primary fact, the gap of international secession law, African secession with a new right of the [*620] African Union to intervene within a member State to restore peace and stability: p.257), and the history of secession of the Canton of Jura in Switzerland. An additional region-specific essay addresses secession and international law, Latin American style. In Chapter Twelve, Frida Armies Pfirter and Silvina Gonzalez Napolitano take an historical perspective dating from the 16th century “viceroyalty” onwards (p.378). This chapter in particular, presents an unparalleled lawful interpretation of this region’s history.   

 

Antonello Tancredi’s essay on the “due process” of secession practice – despite the bustling activity in the footnotes and intermittent insertion of French sentences (pp.173, 183), is less successful.  

 

Andreas Zimmerman’s installment covers the beguiling problems of secession and succession, analyzing what rules of State succession apply in regard to treaties. At the outset Zimmerman asserts that, traditionally “seceding States have . . . claimed not to be automatically bound by treaties concluded by their respective predecessor States” (p.213). As a result, readers may be forgiven for concluding that, “such successor States did not automatically inherit the contractual obligations” (of the former colonial power) (p.214). However, Zimmerman stipulates that, State practice post-1990 confirms (referencing ICJ judgment in 1997) that the customary treaty law ensures a corollary that treaties attach to the territory – running with the land so to speak – “automatically devolving upon the successor State” (p.214). The historical correlation of statements ensures this chapter is a serious page-turner.    

 

The tenth essay in is supplied by Li–Ann Thio. Her contribution successfully wraps up secession in the Asia Pacific region. Despite separatist initiatives that threaten regional order, Thio elucidates how the international community is increasingly prone to recognize the “realities of secessionist attempts as a remedy where the government of the predecessor State committed . . . human right violations against the seceding unit” (p.300). Thio supports this statement with the example of Bangladesh, where “the UN did not immediately recognize Bangladesh but expressed concern for the gross human rights violations committed” (pp.305, 336). She later catalogues the configuration of territorial units by colonial powers and the construction of multi-ethnic States (in India, Indonesia and Sri Lanka) with the “attendant problems promoting co-existence.” Thio correctly interprets this as “partly a legacy of European colonialism” (p.312). The litany of complaints (from postcolonial States) is not all laid at the door of imperialism, for Thio only attaches part responsibility. She concludes her contribution, unequivocally stating that, “while one might hope that international law on secession is morally progressive, a minimal realism is warranted, given States” preoccupation with internal security and regional stability” (p.350). The most unambiguous example one could attach to Thio’s remarks is the equilibrium relating the US-China-Taiwan Triangle. (During Chinese [*621] President Hu Jintao’s visit to the United States on 20th April 2006, President George W. Bush reaffirmed to the world that he supports the U.S. “one China” policy.). Thio is incredibly conscious of the “potency of nationalism-related . . . issues of State fragmentation in the Asia Pacific . . . led by oppressed ethno-cultural minority groups within post-colonial States,” the corollary of which will “spark fears of political balkanization” (p.353). Thio’s writing (cross–disciplinary) is of the highest order and most comprehensible, utilizing a vast repertoire of sources (though one feels that Benjamin (2003, at 8–10) would have supplied valued added material).

 

The most superior chapter in the volume is the eleventh. Undergirded by unsurpassed (European) historical analysis this essay should be read first. Photini Pazartzis discusses the imposition of conditions (of both popular will and respect for human rights) providing the scaffold that is “internal self–determination,” the perquisite to external self–determination (pp.369, 372) – a most clear and scholarly exposition.

 

In conclusion, the contributors coherently instruct their intended audience that it would be erroneous to proclaim that secession violates the principle of State territorial integrity, for this term applies only in international relations. However, as the reader will rapidly become aware, politically–speaking, forcible attempts at secession are increasingly condemned as a threat to international security. Such condemnation in turn, undermines the effectiveness of a secessionist entity claiming statehood. Crucially though, this reviewer interprets “law” as little more than a scarecrow on the international landscape, and its logical function is, appropriately, that of a straw man.

 

Finally, Kohen’s edited volume is plainly written and more than satisfactorily organized. This tome is of huge significance to an audience of law and politics students and practitioners in their respective fields.

 

REFERENCE:

Barber, Benjamin.  2003.  JIHAD VS. MCWORLD: HOW GLOBALISM AND TRIBALISM ARE RESHAPING THE WORLD.  New York: Ballentine.

 

CASE REFERENCE:

NATIONALITY DECREES IN TUNIS AND MOROCCO, 1923, PCIJ, Series B, No. 4, p.24.

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© Copyright 2006 by the author, Lee P. Ruddin.