realiza un resumen profesional y por puntos de este texto: ""Chapter 2
Sovereignty, state fragmentation and the limits
of political obligation
The relation between the concepts of sovereignty and self-determination
is as complex as it is central to any normative understanding of selfdetermination and to the limits that can be placed on its exercise. Perhaps the
greatest challenge extending from the right of self-determination is that it can
be used both as an affirmation of the state and its sovereignty over a territory
and a people as well as a justification for the fragmentation of an existing state.
Chapter 1 explored the nature of self-determination and its connection to
human rights and the rights of groups, concluding that its validity and
significance as a norm was based on its ability to give meaning and fulfilment to
the lives of those who make up the groups by affirming and strengthening their
shared identity and aspirations. If self-determination operates in this fashion
within the confines of a sovereign state, which, in turn reflects or enhances the
lives of its citizens, then self-determination serves as a norm both to shape and
define the character and identity of the state and to legitimize the state’s actions
towards its citizens, thereby reinforcing popular sovereignty and human rights.
This is sometimes referred to as the ‘internal’ or ‘domestic’ aspect of selfdetermination, which at first glance may seem relatively incontestable, but there
are large and controversial issues when a state contains more than one Primary
Identity Forming Group (PIFG), which is the case in all but a handful of states
today, and it becomes even more challenging when the ‘external’ aspect of selfdetermination is taken into account. This aspect refers to the interactions and
relations of a self-determining community, the state in which it is located and
the international society of states pertaining to questions of international
legitimacy and recognition and, ultimately, of state fragmentation and secession.
Accordingly, the external aspect largely revolves around emerging
nationalism and the international dimension of identity politics. This
precipitates further questions such as whether the self-determination of
nationalities or other PIFGs dictates that the only legitimate state is one that
reflects the will of the people over whom it exercises authority, to what extent
nationalist demands from within a multi-national state must be internationally
recognized and accommodated and, in extremis, whether it validates the dictum
‘to every nation, its own state’, carrying with it a right of secession. Even on the
‘less controversial’ issues related to the internal aspect of self-determination
there are potent questions, such as whether contemporary multi-national or
38
multi-ethnic states persist only through the repression of national consciousness
by the state’s institutions? Secession is the point at which the concepts of selfdetermination, political obligation and the role of the international community
intersect and, as a result, it indicates more clearly the normative confines of selfdetermination and state sovereignty. Examining each of these challenges in turn
provides greater clarity about the limits that can be placed legitimately on the
exercise of self-determination.
(i) Sovereign statehood and self-determination
There is an intimate connection between the concepts of sovereignty, the
state and self-determination. Although there is nothing groundbreaking in this
assertion, it is worth restating because any attempt to separate the ideas and
downplay or deny the connection would result in a misrepresentation of the
concepts and their impact on international norms. Any defence of selfdetermination that fails to consider the concept of sovereign statehood and the
society of states invites theoretical and pragmatic inconsistency and potential
incoherence. As later chapters suggest, this explains in part the troubled course
of events involving self-determination after the First World War and in the
post-Cold War era.
The state is a political entity that is relatively easy to discern, especially
considering its prominence today. Yet, despite being the central focus of
politics in the modern era, the sovereign state and its characteristics are the
subject of controversy. Part of the difficulty is that the modern state, like
virtually all social and political constructs, developed in a particular set of
historical circumstances, changed and developed over time and continues to
alter with the constant process of evolution. Most authors identify a number of
common characteristics that are constitutive of statehood and although there is
a great deal of consensus about what the state is and even about what
sovereignty involves, there is a wide divergence on the relative importance of
various aspects, which makes subsequent discussions about self-determination
and ‘the state’, ‘sovereign authority’ and the ‘international system of states’
problematic.
The 1933 Montevideo Convention defines a state as having a permanent
population, a defined territory, a government and a recognized ability to enter
into relations with other states.1
 In addition, it should be added that states are
today the main political actors on the world stage (and have been in Europe
                                                        1
 ‘Convention on the Rights and Duties of States’ (Montevideo Convention), League of Nations
Treaty Series, 165: 19 (1933).
39
since roughly the sixteenth century), that states recognize each other as having
authority over their territory and populations, that states are legally equal and
that they are only restrained legitimately through international law, over which
states have some degree of control. Although these assertions arouse little
controversy, they prove too vague when analysing sovereignty and the impact of
self-determination. To get at the relation between statehood and sovereignty,
the quality of independence needs to be explained.
Many accounts of the statehood indicate the interrelated nature of
sovereignty and independence. Reynolds holds that sovereignty is the ‘formal
authority to make binding laws and political decisions within recognized
territorial limits without interference or control from other bodies and to act
externally with a freedom that is limited only by voluntarily accepted restraints’.2

Similarly, and in common with many other international lawyers, Jennings and
Watts, in their Oppenheim's International Law, include sovereignty as one of the
four constituent elements of the state, holding that ‘[s]overeignty in the strict
and narrowest sense of the term implies…independence all around, within and
without the borders of the country.’3
 Having the ability to exercise this
authority over a given territorial unit and being free from the interference or
control of another state or states when exercising authority is an important, if
not the defining, characteristic of the state.
However these views all leave the matter in a nebulous condition because
they fail to describe exactly how sovereignty and independence fit together.
None describe how the ability to govern within a state’s borders is gauged or
understood, or how this relates to a state’s international standing and legitimacy.
It is clear that the international community frequently applies a varying standard
when judging the capacity of states to be sovereign within their own borders for
the purpose of recognition.4
 Furthermore, many authors understand the term
sovereignty differently. As Hurst Hannum notes, ‘[a]t least part of the difficulty
in defining sovereignty lies in the fact that sovereignty traces its historical roots
to sovereigns, in whose hands “absolute” spiritual and temporal power rested’,
and as Hannum continues, this is hardly the case today.5

However, both James Crawford’s insightful legal study of statehood and
Alan James’s astute observations from the perspective of international relations
                                                        2
 Quoted in Alan James, Sovereign Statehood (London: Allen and Unwin, 1986), 20. 3
 Robert Jennings and Arthur Watts, eds., Oppenheim's International Law 9th. edn. (London:
Longman, 1992), 32. 4
 See James Crawford, The Creation of States in International Law (Oxford: Oxford University
Press, 1979), Chapter 2, Section 3. 5
 Hurst Hannum, Autonomy, Sovereignty and Self-determination: The Accommodation of Conflicting
Rights 2nd edn. (Philadelphia, PA: University of Pennsylvania Press, 1996), 14-16 and, more
generally, Chapter 2.
40
provide some much-needed clarity.6
 James contends that sovereignty is best
understood as that capacity which entitles a state to enter international society
and play an active role on this stage. Sovereignty therefore becomes a function
of power, one that creates states and ensures their position and standing in
relation to other states. By taking the case of the Solomon Islands and tracing
why they were once not a state and then were, James identifies the capacity to
act without constraint from the British government that transformed the
Solomon Islands into a sovereign and independent state. This freedom is
fundamentally legal in character rather than the product of brute force, and,
accordingly, independence is first and foremost constitutional in nature. Thus a
sovereign state is one that has a constitutional capacity to enter the society of
other states on the terms of equality, that is, an equality of standing, not of
power.
In a similar vein, Crawford states that independence is ‘the central
criterion of statehood’.7
 Using the Island of Palmas Arbitration (1928) and the
Austro-German Customs Case (1931) as precedents, Crawford concludes that
independence is the ability of a state’s institutions of government to exercise
exclusive control over its internal affairs. The recognition of this quality by
other states is not a statement of approval or disapproval of the government or
people, merely an acknowledgement of legal standing. By this explanation, the
society of states is the collection of political entities that mutually recognize the
right to independence over matters deemed to be internal and base their equal
legal standing on this premise.
Sovereign statehood reflects both an external and an internal dimension
of sovereignty that is very similar to the internal and external aspects of selfdetermination. As Robert Jackson explains it, sovereignty includes both ‘an
internal aspect which a government of a populated territory is supreme within
its jurisdiction, and an external aspect in which that same government is legally
separated from all other governments of the same sort and is recognized as such.
Thus in international relations, sovereignty is a mark of political independence
of the state.’
8
It is more than coincidental that the conceptual explication of sovereign
statehood and self-determination sound similar, as the two concepts originated
at roughly the same historical moment and, more importantly, they are
analogous and are interconnected. Sovereign statehood and the corresponding
                                                        6
 James, Statehood, Chapters 1 and 2 in particular; Alan James, ‘The practice of sovereign
statehood in contemporary society,’ Political Studies 47 (1999), 457-473; and Crawford, Creation,
Chapter 2. 7
 Crawford, Creation, 48. 8
 Robert Jackson, 'Introduction: Sovereignty at the Millennium', Political Studies 47 (1999), 425.
41
concept of non-intervention have much in common with the self-determination
and its democratic imperative. Briefly tracing the roots of the sovereign state
usefully illustrates this point.
The international system of states coalesced in Western Europe during
the early modern era (at the same time as self-determination first emerged) and
the system was based on the ideas contained in the peace of Westphalia. The
Westphalian formula of cuius regio eius religio (first stated in the Treaty of
Augsburg of 1555) established independent and sovereign states as the model for
international interaction and gave to that system many of its defining principles,
including non-interference and territorial integrity. Westphalia was a
settlement that, as Daniel Philpott has suggested, altered the ‘constitution of
sovereignty’ for the key political actors concerned.9
 As Jackson explains, this
transformed Europe from a society in which authority was, at least nominally, in
the hands several princes acting on behalf of the greater and unified respublica
Christiana, to an international society based on separate, independent and
equally sovereign entities, into whose domestic affairs other states would not
interfere.10 This alteration was hardly democratic or liberal, but it did have
everything to do with self-determination, for the peace of Westphalia imbued
the sovereign state with certain rights that were predicated on the idea that each
state could determine its own religious, social and political direction legally and
constitutionally independent from the others. Over time, this idea became
central to the relation of states. In effect, each state was free to determine its
own path in the absence of any over-arching, sovereign authority. As Osiander
points out, by the beginning of the eighteenth century, European monarchs were
‘essentially...self determining actors, none of which was entitled to dictate to
others’11, a process that could not have taken place without the conceptual shift
brought about during this time.
One central assumption created at Westphalia was that the
distinctiveness of states’ internal arrangements is the foundation of their
independence and is the basis for non-interference. It is clear that, at the time
of Westphalia (and for many years afterwards), the distinctiveness on which
sovereign independence and non-interference was based was the preferences of a
handful of monarchs or state élites. The determining ‘self’ in this case was the
monarch. However, by adding the democratic underpinning of selfdetermination and nationality to this changes the locus of this distinctiveness.
                                                        9
 Daniel Philpott, ‘Ideas and the Evolution of Sovereignty’, in Sohail H. Hashami, ed., State
Sovereignty (University Park, PA: Pennsylvania State University Press, 1997), 28-34. 10 Robert Jackson, ‘Sovereignty in World Politics: A Glance at the Historical and Conceptual
Landscape’, Political Studies 47 (1999), 435-439. 11 Quoted in Jackson, ‘Sovereignty’, 439.
42
With self-determination, the popular will and sentiment of the state’s citizenry, its
nationality, defines the state and supports the claim to sovereign statehood, and
it does so in a manner entirely compatible with the Westphalian settlement.
While historical evidence of this is discussed at some length in Part II of this
study, it is relatively uncontroversial to assert that, as the position of individual
sovereigns diminished as democracy grew, their role as the definers of the state’s
uniqueness was usurped by the populace at large who were also wresting political
power from them. By the beginning of the twentieth century in Europe and
increasingly elsewhere, the phrase ‘sovereign state’ implied that the citizenry
were a vital and defining part of the whole, rather than the hapless body of
people living within the territorial confines of the state who were insignificant in
relation to the person who was sovereign.
In this sense, self-determination can be seen as something quite different
from what it is often presented as being.12 Here it is not a claim for political
separation; rather it is an expression of popular consent, or at least popular
acquiescence, of the sovereignty of the state. This popular endorsement of the
state’s internal sovereignty confirms the state’s position as a member of the
society of states externally, thereby creating a link between the internal and
external aspects of sovereignty and self-determination. This passive expression
of self-determination is not as obvious as emerging nations are, which should be
seen as active expressions of national self-determination, but it is no less
significant. As the basis of a state’s sovereignty over internal affairs and the
state’s external personality, self-determination takes on a new and more
significant position than perhaps it is accorded when viewed as nothing more
than a remedy to injustice.
Although this clarification is valuable, further issues related to it are not
yet explained. If the link between self-determination and sovereignty is meant
to be a precondition for international legitimacy, are states that cannot show
evidence of popular sovereignty by definition illegitimate? If the answer to this
is yes, then, by extension, is not any state containing emerging nationalism also
illegitimate? If the answer to this is also yes, then national self-determination
would seem to contain a robust and legitimate right to secession. The following
section considers how popular sovereignty, political obligation and selfdetermination affect the question of state legitimacy and the constitutional
arrangements within states, while section (iii) considers the question of
secession.
                                                        12 A similar point is made by Rodolfo Stavenhagen, ‘Self-determination: Right or Demon?’, in
Donald Clark and Robert Williamson, eds., Self-determination: International Perspectives (London:
Routledge, 1996).
43
(ii) The internal aspect of sovereignty and humane governance
Since self-determination can be both passive and active and is, in its
passive manifestation, akin to popular sovereignty, it is vital to delve deeper into
the specifics of sovereignty’s internal dimension. To do this, it is useful to look
at the formation of political society in the liberal democratic tradition again. As
discussed in the previous chapter, political societies are created through a
mixture of choice and necessity to fulfil both the basic needs and the desired
ends of various human communities. The fundamental reason for the existence
of political and social groups, especially PIFGs, is to serve the most significant
interests of the group’s members. Although necessity often plays a greater part
than choice in these groups, liberal democratic theory stresses the importance of
individual volition in this process and traces the genesis of the group and
individual rights to this.
Stressing the role of individual choice in group formation helped
elucidate the hierarchy of rights outlined in Chapter 1, but when considering the
other side of the coin, that is to say the limits of such rights, the emphasis on
volition proves somewhat difficult to systematise. The basic problem is that if
individual or group choice creates a larger polity and/or endows it with
legitimacy, there seems to be no restriction to another choice bringing it to an
end at any point in the future. This is further complicated by the fact that, with
the hierarchy of rights, the wishes and desires of each and every individual in a
particular group must be perceived as meaningful, making it difficult to clarify
when an association should change or end. For example, is a nationality acting
in a ‘popularly sovereign’ fashion when serious dissent exists within its ranks?
How small or how large must the percentage of dissent be before an act of selfdetermination (passive or active) ceases to be legitimate?
These challenging questions point to the indeterminacy created by the
so-called ‘consent theories’ of sovereignty.13 The theories that fall under this
broad heading take many shapes but share the common trait of being based
ultimately on the democratic desires of the group (usually a nationality) taken as
a whole. Self-determination in this context demands that the constitutional
arrangements, whatever their exact configuration, reflect the desires of the ‘the
people’. However, Ivor Jennings’s oft quoted point makes clear that this seems
really easy on the surface, ‘let the people decide’, but, in fact, leaves out the
                                                        13 For developed examples of choice theories of obligation, see Henry Beran, The Consent Theory
of Political Obligation (London: Croom Helm, 1987); Beran, ‘A Liberal Theory of Secession’,
Political Studies 32 (1984), 23-35; Beran, ‘A Democratic Theory of Self-determination for a New
World Order’, in Percy Lehning, ed., Theories of Secession (London: Routledge, 1998); and Daniel
Philpott, ‘In Defence of Self-determination’, Ethics 105 (January 1995), 352-385.
44
answer to the question ‘who are the people?’14 One answer to this is that ‘the
people’ should be taken as all persons in the state, but even if this were plausible
for an overwhelmingly ethnically homogeneous ‘nation-state’ like Japan or
Denmark, the vast majority of states are multi-national and/or have multiple
PIFGs. As a result, something better is needed to address the situation caused
by emerging nationalism.
A more productive approach is to blend the ideas of humane governance
with the conclusions reached in Chapter 1 about the restriction of authority in
groups. Humane governance is increasingly used in academic and policy circles
and is differentiated from other concepts of governance by the emphasis it
places on human rights, peaceful human empowerment, and democratic, rightsenhancing decision-making.15 The effect of this theory on self-determination,
nationalism and sovereignty is to place human empowerment and human rights
ahead of the arbitrary authority of a group or a state. In a general sense, it is
entirely in line with liberal democratic ideas and, more specifically, it fits in well
with the hierarchy of rights. As for the limits of self-determination, it was noted
in Chapter 1 that a nation was meant to be the embodiment of the political will
of its members but that unanimity was not required or expected for the actions
to be legitimate, only that the actions and decisions could not be contrary to the
well-being of the people in an overall or long-lasting sense. Provided this is the
case, a nationality or other PIFG could legitimately demand a rather high degree
of conformity from its members.
As Chapter 1 showed, the formation of social groups, especially PIFGs,
involves consent and creates obligations and authority, and this process is even
more apparent with states. As individuals and groups form or legitimate a state
through their consent, they do so for ends that are ultimately in their own
interests. Although states exist for many reasons, humane governance contends
that their legitimacy rests on the state’s ability to provide an environment that
serves its population’s needs and self-determined ‘goods’. In so doing, the
individuals and groups making up the state are obligated to the state and agree
to respect the state’s authority.
It should be noted that by accepting the state’s authority and the
consequential obligations, the population accepts limitations on the absolute
liberty they would, in theory, possess prior to the creation of such political
                                                        14 Ivor Jennings, The Approach to Self-government (Cambridge: Cambridge University Press, 1956),
56.
15 For a lucid, useful introduction of the concept, see Richard Falk, On Humane Governance:
Towards a New Global Politics (Cambridge: Polity Press, 1995); Daniele Archiburgi and David
Held, Cosmopolitan Democracy (Cambridge: Polity Press, 1994); David Held, Democracy and the
Global Order (Cambridge: Polity Press, 1995), Part IV in particular.
45
collectives.16 The duties imposed by states and the state’s authority over
peoples’ lives are the natural consequences of any well functioning association.
In its proper sense, authority is the right of a state (or another socio-political
body) to control the functioning of the state and, within limits, its citizens’ lives.17
In this context, obligation can be defined as the limitations placed on individual
freedom resulting from the authority the state exercises. Both authority and
obligation, indeed all the legitimate power of the state, arise from the transfer of
freedom individuals make through their tacit or expressed consent for the state,
a transfer made for the greater benefits achieved by the association.18 This is an
important point, for without this, authority would be no more than the power to
coerce. However, to view authority in this manner would be a
misrepresentation of the concept, which in terms of humane governance is never
distanced from its instrumentalist role. In this context, authority is coercive,
but only insofar as the coercion is in the overall interests of the coerced.
Authority, here, is much like Rousseau’s ‘General Will’ which separated the
individual from their particular motivations to force them to act in their general
interest (i.e. their true interest) at all times.19 The result of this is a balance
between the obligations a state may legitimately place on its members and their
retained liberty while subject to its legitimate authority.
This balance is difficult to describe qualitatively with any exactitude, but
it is surrounded by important guiding principles that give it a modicum of
clarity. Like relations within groups, at an absolute minimum, the authority of
the state cannot legitimately override basic human rights. Although an exact list
of basic human rights is very hard to enumerate, it is relatively easy to argue that
every legitimate state will respect at least the most basics rights such as, for
example, life, conscience and freedom from torture, and, while these rights
might be violated frequently in practice, it would be very difficult to argue that
the states doing so exhibit a high degree of internal self-determination.
Accordingly, states have a moral imperative to govern in a humane manner, so as
to make their authority legitimate. However, the theories of self-determination,
humane governance and consent demand more than this from states; they also
set down the idea of democratic responsiveness as a yardstick by which to judge
the application of authority and the imposition of obligations.
                                                        16 This builds on the premises taken in most contractual theories of the state. (e.g. John Locke,
Two Treatises of Government, Peter Laslett, ed. (Cambridge: Cambridge University Press, 1960);
Thomas Hobbes, The Leviathan (New York: Collier Books, 1962), et al.) 17 cf. Beran, Consent, 5-15. 18 For a classic elaboration of tacit consent, see Locke, Two Treatises. 19 Jean Jacques Rousseau, The Social Contract and the Discourses (London: Everyman Library, 1973),
190-192.
46
This is not to suggest that only liberal democratic states can be selfdetermining. Self-determination does have its philosophical roots in liberal
democratic theory and assumes a democratic or at least demotic backing for the
state’s authority, but neither it nor consent theory nor humane governance
suggest that legitimate expressions of self-determination inevitably lead to
liberal democratic institutions. Numerous peoples have given their tacit, if not
their expressed, consent to forms of government and to associations that are not
particularly democratic or even terribly rights respecting.20 The point here is
that for authority to be legitimate the state must reflect the interests of its
population and it must maintain their approval or at least their willing
compliance. In short, the state’s population must exhibit a degree of selfdetermination, though this need not necessarily be national self-determination,
for the creation or maintenance of a viable, singular national identity is not a
necessary condition for a state’s authority to be legitimately exercised (though
most states seek to foster the development of a national consciousness in order
to help legitimize their actions and existence).
This balance allows a state to exercise its authority while preserving the
interests of individuals and groups within its borders, and it permits the creation
of laws that are ultimately deemed to be in the interest of the public good even
if they are not specifically attractive to a particular individual or groups.
Examples of this could include limitation on travel or conscription. Many
individuals may themselves in the position of seeing no tangible benefit of such
an obligation, but this is simply the trade off for the greater good of the whole
society. In many cases, individuals may never actually receive any reciprocal
benefit from such obligations in any overt or material sense of the term. For
example, taxation of the wealthy may never yield any tangible benefit to them,
nor may they ever have recourse to the public services their taxes support. Thus
on the grounds of reciprocity as tangible reward, some people may not consider
their contribution to be sufficiently worthy to warrant their continued allegiance
to the state. Such an opinion, though plausible on the surface, does not bear up
under scrutiny, as the basis of duties such as taxes to groups is not reciprocity in
the sense of receiving immediately tangible benefit, but the intangible and,
perhaps indefinable benefits of corporate society. Moreover, these duties are
valid even when they are not codified, when they are the result of custom and
even when the state was created by a previous illiberal action, such as conquest.
As with PIFGs, what determines the legitimacy of a state is the degree to which
                                                        20 For example, some Native American PIFGs have a great deal of power and authority that is
based on the overwhelming, popular backing of their members yet observe a limited range of
basic human rights and do not adhere to liberal democratic standards.
47
it is internally self-determining and acting in accordance with the principles of
humane governance - in other words, the degree to which the state serves the
interests of its population and provides opportunities for them to find meaning
and fulfilment.
Of course, it must be remembered that states provide not only identity
but also security for the enjoyment of individual rights at both the domestic and
international level. They are (normally) the bodies that ensure social order,
dispense justice and have the greatest responsibility to individual development
by controlling or influencing education, housing, economic regulation, welfare
and cultural policy. A degree of faith that they are in fact acting in the best
interests of the members must, therefore, be extended to such collective bodies.
The wholesale rejection of state authority and obligations would be folly in the
extreme and an ultimately self-defeating proposition, as this would not be either
possible in a practical sense or in the population’s true, best interests as political
association is intended to provide the individual with certain ‘goods’. This does
not deny the right of opposition or even the ultimate right to reform or abolish a
state’s institutions. Indeed, to deny the right of such ultimate remedies would
undermine the liberal democratic basis of society.
The internal aspect of self-determination, then, is an ongoing and
somewhat inscrutable balancing act between respecting the authority of the
state and, at the same time, legitimising that authority through consent, which
itself could be either expressed or tacit. Furthermore, the exercise of selfdetermination at this level could be either active or passive since it applies to
associations of which the present-day population most likely did not themselves
create but only inherited. In these circumstances, it would be illogical to expect
every individual or group to exercise their right of self-determination through
some form of expressed allegiance. Members of such collectives accept the
authority of groups and states until such time as they see fit to use their right of
self-determination in an active manner to oppose the sovereignty of the state.
The maintenance of state authority through a passive expression of selfdetermination by the individuals and groups in a state is most obviously
accomplished by constructing and preserving institutions that not only fulfil the
necessary conditions of basic human rights and minimally responsive
government but also those that aim to develop genuine and meaningful relations
between the state and the governed. Self-determination is meant to enhance
popular sovereignty, and any scheme that would be inconsistent with such a
principle would seem to run foul of this basic intent. Consequently, states have
an obligation to developing inclusive politics, and it is for this reason that states
seeking legitimacy (or at least its appearance) frequently embark on ‘nation-
48
building’. In both theory and practice, the creation or the nurturing of an
inclusive nationality by a state is a useful and important activity not only for
states that aim towards the standards of humane governance but also for those
hoping to minimize resistance from the population. As Chapter 1 showed,
identity, particularly nationality, is deeply meaningful for most individuals, and
the benefit of this for the individual citizen of a national- or nation-state is a
direct identification with personality of the state and its internal institutions.
Of course, it is not necessary and indeed may not even be possible for states to
foster or promote a shared identity or nationality, but without the presence of
the constitutional mechanisms to ensure that all their citizens’ interests and
identities are meaningfully and significantly reflected in and supported by the
state, its authority could be called into question. The duty of providing
democratic representation and meaningful respect for human rights for all
nationalities and PIFGs within a multi-national state is very great, and begs the
question of the length to which a state must go to ensure this and at what point
an underrepresented or repressed group can legitimately assert its right of selfdetermination in an active manner to address this imbalance.
(iii) Secession
Secession brings the theoretical and practical difficulties surrounding selfdetermination and emerging nationalism to a head. Although, the active
assertion of the right of self-determination does not necessarily imply the
fragmentation of a state with multiple PIFGs into new, separate entities, the
insecurity and the fear of instability ensure that any active application of the
principle is a cause for concern internally if not internationally as well. There
seems an impenetrable array of both practical and theoretical hindrances in the
way of making a robust defence of self-determination that includes secession,
and yet the liberal democratic imperatives that buttress self-determination make
it difficult to argue against the possibility of legitimate political divorce if such
actions were manifestly in the peoples’ best interest and enjoyed overwhelming
popular support.
The debate about whether a credible theory of secession exists has
intensified in the post-the Cold War era as more and more states find
themselves confronting emerging nationalism,21 but there are a few theoretical
groupings or categories into which most positions can be placed: antisecessionist, remedial right only, choice, national, and well-being arguments.
                                                        21 The reasons for the proliferation of such theories and the historical and strategic conditions
that have led to it are taken up in Chapter 5 below.
49
Each of these will be considered in turn, but it is interesting to note that in all of
the groupings, regardless of whether a specific theory defends a right of
secession or not, there is little question that a right of self-determination exists
in its passive form. The central issue across all the groups is not whether
peoples’ interests matter, for that is taken for granted, but whether and how
their interests can be served by independence.
The essential point of the theories falling into the anti-secessionist
category is that self-determination, regardless of the actions of a state towards it
citizens, does not include a right of secession. Because it places a blanket ban on
the fragmentation of states, this category could lead to the simplest of
international norms: states are to be supported against all emerging nations (or
any groups) that aim at independence. Some recent anti-secessionist
commentaries have suggested that the right self-determination and a right of
secession are two entirely different concepts and must be kept distinct.22 By this
account, self-determination is a democratic right to participate in the political
life of the state and a mechanism to protect basic human rights, yet the
termination of the overall political association is both separate and illegitimate.
This thinking is often traced to the overriding benefits and the legally binding
nature of political membership in the state. As Buchheit indicates, the legal
dictum that applies is pacta sunt servanda, that, all things being equal, agreements
are binding.23 By this line of thinking, the consent of the governed, whether
tacit or expressed, is entirely binding even for succeeding generations. It was to
this line of thinking that Abraham Lincoln subscribed. As he said in his first
inaugural address in 1861, ‘I hold that the Union of these States is perpetual. No
State upon its own mere motion can lawfully get out of the Union.’24 Lincoln, in
fact, was willing to concede a very great degree of autonomy to the southern
states (e.g. enforcing the Fugitive Slave Act and refusing to act against slavery in
existing slaveholding states prior to 1862), while declining even to contemplate
secession.
Of course, the difficulty with the anti-secessionist logic is that such
blanket bans are blunt instruments and are open to many criticisms. The most
obvious difficulty is that many states have been created as a result of secession,
often without having the legitimacy of the fragmentation called into question,
usually because the secession was overwhelmingly popular within the newly
                                                        22 Max Kampelman, ‘Secession and the Right of Self-determination: An Urgent Need to
Harmonize Principle with Pragmatism’, The Washington Quarterly 16:3 (1993), 5-12. 23 Lee C. Buchheit, Secession: The Legitimacy of Self-determination (New Haven, CT: Yale University
Press, 1978), 20. 24 Abraham Lincoln, ‘First Inaugural Address’ (4 March 1861) [http://www.yale.edu/
lawweb/avalon/presiden/inaug/lincoln1.htm].
50
created state and internationally. For example, the international community
endorsed most of the state creation following the First World War and during
the era of decolonisation precisely because it enhanced popular sovereignty.25
On the purely normative level, separating self-determination from secession is
questionable in light of the principles of liberal democracy and consent theory.
If popular sovereignty is to be valued as a safeguard of the rights and status of
the people within a state, the right to alter or abolish that state cannot be
denied, for without this reserved power, a state could inflict the most severe
abuses on all or a portion of its population without the fear of a legitimate
fragmenting taking place.
It might seem possible to make an exception to the anti-secessionist
category and to limit secession only to the case of decolonisation or to political
‘divorce’ where all parties agree to the secession.26 However, both cases fail to
satisfy the demands of self-determination as it is understood in the liberal
democratic tradition. If the enhancement and protection of rights and
fulfilment for all citizens is the ultimate goal of self-determination and the
sovereign state, it is hard to see how these exceptions necessarily achieve or
work towards these ends. As for decolonisation, the ‘exception’ fails to identify
accurately the real problem behind decolonisation, namely, unpopular and
unresponsive rule. Colonialism can be condemned for many reasons, but arguing
that it violates the right of self-determination for being ‘alien’ or ‘foreign’ rule
misses the mark, as the real illegitimacy of colonial rule was its lack of popular
support by those it ruled. Such a situation could easily exist or be worse within a
state that has no experience of colonialism, and, yet, in these non-colonial cases
would fall under the ban. Similarly, to grant an exception when the parties
merely agree to separate might lead to a situation in which either or both of the
new entities fail to enhance rights or actually to repress them. Both of these
scenarios clearly are at odds with a rights based theory of self-determination and
sovereignty.
It is for this reason that some scholars have focused on defending
secession as a right used for remedial purposes only.27 In remedial right only
theories, no right of secession exists except when the group in question acts ‘in
                                                        25 These cases are examined more depth in Part II. Of course, it should be noted that whether
the creation of states actually contributed to popular sovereignty is another matter.
26 Michla Pomerance, Self-determination in Law and Practice (The Hauge: Martinus Nijhoff, 1982);
Malcolm Shaw, ‘The Western Sahara Case’ British Yearbook of International Law 49 (1978), 153. 27 Although remedial theories have a long intellectual history, Allen Buchanan’s recent treatment
of the subject is arguably the clearest and most potent statement of the position at present. See
Allen Buchanan, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec
(Boulder, CO: Westview Press, 1991); Buchanan, ‘The International Institutional Dimension of
Secession’ in Lehning, Theories of Secession; and Buchanan, ‘Democracy and Secession’ in Moore,
National Self-determination.
51
response to serious and persisting grievances’ and as a ‘remedy of last resort to
escape serious injustices’.28 Although these conditions are far from specific, they
establish parameters by which a state’s legitimacy and its subsequent
fragmentation can be judged internationally. Since self-determination is
grounded in human rights and liberal democratic theory, persistent violations of
individual rights and the standards of humane governance would certainly call
into question a government’s legitimacy and justify the fragmentation of the
state provided that the aim of the secession was solely to redress serious
injustices. Accordingly, the legitimacy of state fragmentation would be
determined by the persistence and severity of the evils suffered by those
attempting to secede and the degree to which the new state they aim to create
reflects a correction of those wrongs.
The advantage of this theory is the equal emphasis it places on human
rights and the necessity of those suffering the abuses to show sufficient cause for
redress. As for the first of these, the emphasis on human rights and democratic
governance fits well with self-determination’s intellectual heritage. If a state’s
legitimacy is supposed to be based on its popular support, then the abuse of
fundamental human rights ought to trigger an active assertion of a people’s right
to self-determination as a corrective to this, up to and including a right of
secession. The emphasis placed on showing sufficient cause can be seen as a
corrective to what one scholar has called ‘vanity secessions’, which are secessions
based on motives that are ethically inferior to the serious and persistent abuse of
fundamental human rights.29 In this way, remedial rights theories permit
secession but do so only in a highly conservative manner, thereby providing a
defence against the (well-founded) accusation that secession is disruptive to
international stability and security. By placing the burden of proof on the
seceding party, remedial rights arguments ensure that the only legitimate cases
of state fragmentation will be those where the protection and promotion of
human rights and humane governance are the motivation. In any normative
framework of self-determination, the challenge is to develop theoretical
parameters that permit self-determination yet maintain a credible and workable
degree of political obligation. Self-determination should never be responded to
in a way that supports only one side of this important equation. The remedial
rights only argument has the double-edged benefit of protecting a specific body
of people on a specific occasion and promoting the general principles behind a
liberal democratic conception of self-determination while also ensuring a stable
                                                        28 Buchanan, ‘Democracy’, 25. 29 Wayne Norman, ‘The Ethics Of Secession and the Regulation of Secessionist Politics’ in
Moore, National Self-determination, 52-56.
52
framework for the application of these ideas through the setting of limits on the
concept’s application.
Although remedial right only theories provide some much-needed
boundaries for the active application of self-determination, the emphasis on
suffering as the criterion for the legitimisation of separation avoids the question
of who can secede and what they can take with them in terms of land and
resources. This seems to reopen some the issues that seemed settled about the
legitimate holders of the right of self-determination and then to try and develop
a remedial right of secession. For example, would religious congregations or
even smaller groups, such as families, be legitimate holders of this right in this
version and, if so, should other criteria such as the economic viability, the size or
the degree of ethnic or national cohesion of a group be added to the list of
requirements? If the persistent, widespread and serious violation of basic human
rights is what matters, why should the size of the territory in question or the
ethnic composition matter? What alternative do remedial rights theories hold
for states, like former Yugoslavia, where the violation of rights was evident but
the geographic mixing of PIFGs was such that viable secession seemed
impossible in practical terms?
If it were only a matter of adding further criteria, remedial rights theories
might serve as a basis for a normative framework for addressing secession, but
there are more issues that are not addressed at all. One is that, regardless of how
theoretically correct it is to justify secession as a remedy for serious and ongoing
wrongs, it is far from easy in practice to judge accurately what constitutes ‘grave
violations’, how much suffering is ‘enough’ to trigger a legitimate, active exercise
of self-determination and who is competent to judge these criteria. While it
might be acceptable to say that the ‘court of world opinion’ is a good place to
look for verdicts, this court can be manipulated by those who might be more
able than others to parade their suffering effectively on the international stage.
It must also be noted, the international community has to balance other,
potentially conflicting norms and a host of practical and strategic factors at the
same time. Nonetheless, the indeterminacy surrounding this, while great, can be
reduced, in theory at least though often not in practice, through diligent
collection and reporting of human rights violations and humane governance
initiatives that seek to judge and address the actual degree of democratic
deficit.30
However, a more fundamental problem with remedial theories is
precisely the concentration on abuse. While the gross abuse of human rights
                                                        30 The role of the media, intergovernmental and non-governmental organizations in collecting
and reporting such information would be critical for success in this process.
53
and the persistent and systematic denial of humane governance would legitimize
the active application of self-determination, there seems no good reason why a
more expansive list of rights, or even democratic participation should be denied
to a group that has not had the ‘privilege’ of persecution. To limit secession to
remedial use only would encourage ‘rouge states’ to abuse all or part of their
population to all lengths short of that which might break the (undefined and
perhaps indefinable) minimum threshold at which the right to selfdetermination could be actively applied legitimately. As a result, limiting the
cases of legitimate secession to remedial circumstances only might restrict the
passive, democratic aspect of self-determination within states and might
eliminate the possibility of legitimate political divorce based solely on the
expressed, self-determined wishes of emerging nations.31 Thus, the remedial
right only position is too limited to be the sole basis for an encompassing
international norm of self-determination.
On the other extreme of the debate from the anti-secessionist position
are the choice theories of secession.
32 The arguments that fall under the heading
of choice theories revolve around the central belief that there is an intrinsic
value in democratically organised societies and in the exercise of political
autonomy and that the expressed choice of a group to secede may be a
democratically legitimate action, regardless of the group’s motivation. Choice
theories do not require evidence of prolonged or severe abuse by the state.
According to choice theorists, the value of autonomy and the democratically
expressed will of the people in favour of secession outweighs whatever value
might be attached to the maintenance of the existing state. As Philpott clarifies,
‘[w]hat justifies self-determination is not the mere fact of the members’ choice,
but their realization of democratic autonomy, their increased ability to steer
their fate. Autonomy here is a realized good.’33 The circumstances giving rise to
the secessionist movement are also of little significance, for, regardless of what
specific participants themselves claim at the time, the real aim behind all
secessions is the increase of autonomy.34 In this conception of selfdetermination, the liberal democratic heritage is most openly visible and
promoted. The expression of political will, whether in the shape of plebiscites
or mass action takes on a liberating and enriching function for all those involved
                                                        31 Cases like the ‘velvet divorce’ of Czech and Slovak Republics in 1992 come to mind as cases
that would not be valid under a remedial right only theory.
32 See for example Philpott, ‘In Defence’; Daniel Philpott, ‘Self-determination in Practice’, in
Moore, National Self-determination, 79-102; Beran, ‘A Liberal Theory’; and Beran, ‘A Democratic
Theory’. Also see Ronald S. Beiner, ‘National Self-determination: Some Cautionary Remarks
Concerning the Rhetoric of Rights’ in Moore, National Self-determination, 158-180, for a more
limited endorsement of this concept.
33 Philpott, ‘Self-determination’, 82. 34 Philpott, ‘In Defence’, 375-376.
54
since the act of secession seeks a ‘good’ towards which they themselves desire
and work. This approach to self-determination and secession also obviates the
need to produce evidence of suffering that remedial right only theories
necessitate. If the clearly expressed will of the people to separate from a state is
the legitimizing factor, then it seems superfluous to require any group to endure
human rights abuse. This has the tremendous added bonus of setting a higher
standard of democratic accountability for states, which, again, reinforces popular
sovereignty and respect for humane governance.
However, the emphasis on the expressed will of the people as the
legitimating principle creates almost as many problems as it solves. One major
difficulty is the failure to identify and limit the number and types of groups that
can legitimately exercise the secessionist element of the right selfdetermination. Most choice theorists speak of a people with a common
allegiance, a shared culture or an affective tie that binds them, which legitimizes
their efforts to separate from their current state, but such formulations fail to
show why these groups should have priority over any others if choice is the most
important factor in their secession. Many choice theorists suggest that only
groups with a specific territory and with economic viability can legitimately opt
for secession or they go silent on the issue,35 but such qualifications seem
insubstantial. By placing such weight on the importance of choice, it seems
implausible to then limit the choice-making groups to only those in neat,
territorially confined parts of the state from which they wish to split, taking
enough (but not too much) of the former state’s resources to be economically
viable once independent.
Another problem with choice theories is the potential for abuse. In
addition to the threats of unlimited fragmentation and ‘vanity secessions’,
Buchanan points out that plebiscitory theories of secession can actually prove to
be anti-democratic, in that a minority group can hold a majority to ransom by
endlessly threatening secession, and in so doing, monopolize the state’s
attention and an unjust share of the state’s resources.36 In effect, this abuse of
the right self-determination runs counter to the democratic logic behind popular
sovereignty. Although technically correct in calling this undemocratic,
Buchanan fails to highlight the larger confusion surrounding the issue, for
without knowing the boundaries of the demos in question it is impossible to
determine whether an action is actually democratic. Additionally, choice
theories emphasize democratic, as opposed to liberal democratic, values. Putting
aside Buchanan’s concern that choice theories can be used by minorities to wrest
                                                        35 Philpott, ‘In Defence’, 369-371 and Beran, ‘A Democratic Theory’. 36 Buchanan, ‘Democracy’, 21-24.
55
concessions from a majority, there is too much silence about the rights of
individuals within newly created states in choice theories and no mention about
the protection of dissenting minority groups that might be trapped within the
new states. All that can be inferred is that such individuals and groups would
have the same right to leave or secede from the new state as the original group
did from the previous state.37
If choice theories are lacking because they do not clarify sufficiently what
groups may secede, then nationalist theories of secession by contrast are far
more restrictive. As Part II outlines, nationalist theories were employed
frequently in the twentieth century and contend that nations are culturally,
historically and socially distinct collective entities and, as such, hold the right to
secede. Many authors, not just those who perceive a specifically national right of
secession, argue or assume that seceding groups must have a high degree of unity
and permanence to be legitimate.38 Chapter 1 contended that, of all PIFGs,
nationalities are the most developed in political terms, and, because many can
draw on shared culture, history, ethnicity, homeland, etc. to maintain their
unity, nations are the most likely groups to challenge the status quo within state,
and, as such, the make the best (and perhaps only) case for being a ‘special
category’ that can exercise a right to secede from a state.
Looking at the matter in ideal theory helps to confirm this conclusion,
for in idealised conditions, it could be maintained that any group or any
individual could exercise the right of self-determination actively and ‘secede’ on
virtually any grounds. However, by adding the ‘national’ qualification, the
employment of a right of secession is limited in a way that preserves the
democratic basis of the right while adding more manageable conditions. Firstly,
beyond permanence and unity, nations are democratic (or at least demotic)
embodiments of their members’ identity and desires, and, as such, they merit
greater ethical significance than non-PIFG social and political groups and,
because of their relative size and degree of political, social and economic unity
and activity, they are more capable than any other PIFG group of meeting the
requirements of sovereign statehood. Nationalities also bring their own
territorial dimension to the secession process. Although the introduction of
territory can be deeply problematic, virtually all nationalities have a ‘homeland’
                                                        37 Beran, ‘A Liberal Theory’ and ‘A Democratic Theory’ hints that this might be the case. 38 See, for example, Beran, ‘A Liberal Theory’; Beran, ‘A Democratic Theory’; Simon Caney,
‘National Self-determination and National Secession: Individualist and Communitarian
Approaches’ in Lehning, Theories of Secession; Kai Nielson, ‘Liberal Nationalism and Secession’, in
Moore, National Self-determination; David Miller, On Nationality (Oxford: Oxford University
Press, 1995), Chapter 4; Ralph Predmas, ‘Secessionist Movements in Comparative Perspective’,
in Ralph Predmas, S.W.R. de A. Samarasinghe and A. Anderson, eds. Secessionist Movements in
Comparative Perspective (London: Pinter Publishers, 1990).
56
and for most, this is not only a geographical space but carries with it a spiritual
significance that binds people to it and normally evokes a high degree of loyalty
and willingness to sacrifice to secure or obtain it.39 While having a distinct
geographic space is essential for acquiring statehood, the emotional attachment
to land can become so visceral that any practical application of selfdetermination can be too focused on this one dimension, thereby thwarting a
settlement and distracting the parties away from other crucial component of
self-determination such as human rights.
Unfortunately, nationalist theories of secession fail on several other
counts. Perhaps the most important is the way national theories treat any
nation as having the same entitlement to secession. Although it has been
contended that part of a nation’s ethical worth is its democratic basis, it must be
remembered that the term democratic is employed broadly and refers to the
equality of membership and the crude articulation of public will that nations
embody. While some nations are fully democratic in terms of participation,
institutions and the reflection of popular sovereignty, nations are frequently
subject to elite manipulation and have only marginally liberal or, indeed, illiberal
institutions and policies.40 In its simple form, the national theory of secession
extends the right of secession somewhat blindly, equally to liberal and illiberal
nations alike, but attempting to limit its application to ‘liberal’ nations is a tricky
enterprise at best. For one thing, exactly what makes a nation ‘liberal’ is not
immediately certain and even if criteria can be teased out, it is still far from
obvious why this should confer an automatic right to secede.41
Of all the theoretical approaches to secession, perhaps the most vague at
first glance is the ‘well-being’ defence of secession.42 It is somewhat helpful to
begin by describing the affinities that well-being arguments have with remedial
right theories. At the simplest level, well-being arguments, like remedial right
theories, seek to protect the physical security and basic rights of individuals and
groups by legitimizing secession that is carried out for these reasons. But, a
concept of well-being also incorporates values that are beyond security and basic
human rights, such as the welfare, interests and aspirations of the people within
a society. The source of the ambiguity is the stress placed on well-being, which
appears on the surface to be a deeply subjective matter.
                                                        39 For more on the territorial dimension of nations and nationality, see Smith, Ethnic Origins. 40 This point is well made, in a wider context, by Erica Benner, ‘Is There a “Core” National
Doctrine?’ Nations and Nationalism 7:2 (2001). 41 For the difficulties in defining the idea of a ‘liberal’ nation, see Tamir, Liberal Nationalism. 42 For example, see Avishai Margalit and Joseph Raz, ‘National Self-determination’, Journal of
Philosophy, 87 (1990).
57
However, the uncertainty about this list of values, which itself is not
exhaustive, is entirely compatible with the democratic nature of selfdetermination, for it permits flexibility and greater applicability. To clarify, by
not specifying what well-being means in absolute sense, each group or society is
left to determine what is essential for their well-being, what they consider to be
the ‘goods’ for which their society exists. In this sense, well-being is a concept
that fits nicely with the democratic dictum of allowing people ‘to find their own
good in their own way’. Raz and Margalit speak of an ‘intrinsic argument’ in
favour of self-government as a means to promoting the well-being of the body
politic. Building on this point, Simon Caney maintains that the right of selfdetermination, including secession, can be justified by the benefits that
autonomy and self-government deliver to the well-being of the people in
question.43 At the core of well-being arguments is the assumption that states
ought to be popularly sovereign and that states have a fundamental duty to serve
their citizens interests, thereby extending the internal aspect of selfdetermination to the external level.
However, few authors delve into any detail about what well-being means
and how it might translate into international norms to deal with secession crises.
One thing that helps with this is the relatively seamless fusing of well-being
arguments to national theories of secession. 44 Doing so gets around a huge
number of the difficulties previously mentioned. Firstly, it removes questions
about which groups’ well-being should be considered. This is not to suggest that
PIGFs’ or other groups’ well-being is insignificant nor does it necessarily mean
that only nationalities have a right to secede; it just indicates that nations, for
the reasons outlined above, will be the only groups that normally have a right to
secession, whereas other groups that lack the political, social and economic
status and viability to achieve sovereign statehood will have a higher burden of
proof to meet in order to secede legitimately.
This also addresses the ‘other side of the coin’, that is, the duties of the
sovereign state that has multiple nationalities or PIFGs within its borders. In
such cases, it is the responsibility of the majority or the dominant statesponsored nationality (if indeed there is one) to ensure that the well-being of
minority nationalities and other PIFGs are sufficiently respected, lest they
spawn and give legitimacy to emerging nationalism. Although it may be that
emerging nationalism within an existing state can best ensure the well-being of
the members of that nationality, this alone may not be sufficient to legitimize
                                                        43 Caney, ‘National self-determination’ 163-175. 44 Many authors do so without noticing or articulating the benefits. See Margalit and Raz,
‘National self-determination’; Caney, ‘National Self-determination’ 163-175; Miller, On
Nationality, ch. 4.
58
secessionist campaigns. Since well-being can (and should) be interpreted loosely,
it is easy to maintain that when multi-national states protect physical security
and basic human rights and make genuine attempts to secure the interests and
aspirations of all the individuals and groups within their confines, the legitimacy
of secession by emerging nationalities is highly questionable. Because the results
of secession are uncertain, emerging nations would have to show not only that
their well-being would be discernibly and markedly improved by secession but
that the state from which they are seceding has manifestly failed to ensure their
well-being.
From this it is clear that well-being arguments are not as open to abuse as
choice theories nor as restrictive as remedial right only theories. This
introduces another dimension to the popular sovereignty/secession equation
that is incredibly important (and notoriously overlooked) when the theoretical
basis for international norms of secession is considered. Consistent,
theoretically coherent and rigorous international norms should not only lay
down conditions that legitimize secessions but they should also provide
incentives for existing states to accommodate national and other PIFG
minorities within their borders. International responses to movements for selfdetermination should never support only one side of this important equation.
As Viva Ona Bartkus notes in her detailed examination of groups’ decisions for
secession, the reaction of states to the challenges and demands of potential
secessionists is a key component in the course of action ultimately taken by
groups threatening the state.
45 Accordingly, states hoping to avoid
fragmentation have an interest in seeking to support the well-being of such
groups and the international community, in turn, should hold up norms that
facilitate and encourage states to make such efforts. As the well-being approach
to secession places demands on both sides of the dispute, it goes some way
toward providing a sound basis for international responses to emerging
nationalism and to demands based on self-determination.
However, this modified well-being argument needs further refinement.
Its greatest deficiency, which it shares with the national theories, is the
insufficient protection of individual rights within the larger scheme of selfdetermination. To correct this, the hierarchy of rights mentioned in Chapter 1
should be applied. Doing so insures that self-determination and secession are
kept firmly within the liberal democratic tradition.
The theory of self-determination and secession put forward here, then,
places the well-being of the individuals within a nationality or other PIFGs in
                                                        45 Viva Ona Bartkus, The Dynamics of Secession (Cambridge: Cambridge University Press, 1999).
59
the uppermost position. It assumes that nationalities are the type of group most
likely to seek secession and normally make the best case for seceding; that,
ultimately, individuals form and/or maintain national identities (even if
inherited) because they are deeply valuable in some way to them; and that, since
nations are made up of and exist for the benefit of the individuals who compose
them, national rights are secondary to individual rights. Additionally, because
self-determination and secession must work only towards ends that increase the
well-being of all individuals, emerging nations have the burden of showing that
the any scheme that dramatically increases autonomy within or fragmentation of
the existing state is aimed at these goals. Some important limitations on the
right of self-determination and secession follow on from this.
One of these limitations strikes at two particularly troublesome aspects
of post-secession states, namely the problem of post-secession minority enclaves
and the protection of citizens’ rights in the new state. The logic of secession
holds that, following independence, the nationality that was formerly an
oppressed or poorly served minority will be governed better now that they form
the majority in the newly created sovereign state, but many theories of secession
ignore or only weakly address the plight of the new minorities invariably created
by the separation. However, the incorporation of the hierarchy of rights and the
emphasis on well-being and humane governance ensures that no campaign for
self-determination should be legitimate that would result in a new state or a
devolved federal region that permitted violations of human rights or restricted
to only a portion of the citizenry the opportunities for meaningful participation
in the public life of the new entity.
Moreover, if a newly independent state were to contravene the hierarchy
of rights on which this framework for self-determination is based and failed to
look after the well-being of its minorities, it would be furnishing the minority in
question with grounds for redress or even secession that would be identical to
those the new state employed against the multi-national state from which it
seceded previously. Although this (theoretically) risks ‘infinite divisibility’ it is
highly unlikely, because of the stringency of the conditions that have to be met
before secession could be valid.
It should be stressed that this approach to self-determination and
emerging nationalism sees secession very much as a last resort. Although the
remedial right only argument was rejected as too limited, the theory of secession
proposed here is still rather conservative. Provided a multi-national state’s
actions are not contrary to the principles of humane governance, the well-being
of the individuals living there is probably best served by finding a solution within
the state (e.g. autonomy, federalism, consociational government, etc.) rather
60
than through secession. No PIFG could legitimately secede without paying due
regard to the just obligations required by the association they are attempting to
alter or abolish. Such just obligations are the natural consequences of any wellfunctioning state and form the other side of the sovereignty coin. Accordingly, a
state can expect a relatively high degree of compliance from the PIFGs living in
its borders. In effect, this formula gives both sovereign states and emerging
nations targets and limits. The target is to create and maintain institutions that
respect the rights of all of the state’s citizens and govern in their interests, and
the limit is to respect the authority of the state, a respect generated by the
benefits provided by being part of the state.
This formula for self-determination and secession does not concentrate
on what limits or conditions can be place in front of a seceding group before the
secession is acceptable. Rather, it approaches the issue with the premise that
session is a legitimate, if extreme, action provided the protection of human rights
for all citizens of the new state is equal to or greater than the protections given to all
citizens of the state from which the group seeks separation. The use of the term
‘citizens’ rather than ‘nationals’ or ‘peoples within the state’ is deliberate and is
crucial to the success of the formula. By using the term ‘citizens’, selfdetermination hopefully becomes a more inclusive norm, treating the majority
and minorities in the state equally. The principle is directed to all individuals
who are subject to the power of the state and those who would be under the
sovereign authority of the new entity, thus emphasising the superiority of
individual and human rights when confronting emerging nationalism.
This argument also does not privilege national or ethnic claims based on
historical evidence or even directly on the sufferings (real or imagined) of the
seceding groups. Instead it places the spotlight on the actions and policies of
current and ‘potential’ states, thereby directing the scrutiny where it ought to be
in a normative framework that seeks above all to ensure and promote humane
and liberal democratic government. Following this argument, the state
attempting to thwart a secession cannot rely on vague appeals to sovereignty and
non-interference or put forward convoluted legal opinion and precedent, yet, at
the same time, the nationality or other group seeking independence cannot rely
on ‘ancient claims’ or ‘evidence’ of past wrongs to justify the rightness of their
cause to the court of world opinion whose hearing is selective and whose
verdicts are fickle at best. Instead a challenge is created.
In the first instance, it is a challenge for the existing state to
accommodate to the greatest possible extent its minorities through existing
mechanisms of political reconciliation and inclusion, such as consociational
government, constitutional reform or autonomy. However, it also challenges the
61
seceding group to examine its programme in light of the requirement to
accommodate not only its own members but also all minorities in the new state
and to ensure that these groups will be well governed, secure and respected and
fully part of the workings of the new state. Failure to do so might legitimize
secessionist actions against this new state and garner the support of the
international community. This requirement alone might have a most profound
and sobering effect on emerging nationalist movements.46
(iv) Implications for international norms
The accuracy and utility of these theoretical observations related to selfdetermination, sovereignty and secession must ultimately be judged by their
ability to provide a sound and practicable normative framework for international
responses to the challenges presented by emerging nationalism and identity
politics. On the normative level, the challenge is, as Buchheit notes, ‘to suggest
acceptable guidelines for the operation of the principle of self-determination
which, for obvious reasons, may not accede to the demands of every parochial
sentiment but which must also avoid an uncritical affirmation of the supremacy
of the “sovereign” state.’47 What Buchheit calls for is nothing less than a way of
working through at least some of the challenges of self-determination and
emerging nationalism that this study seeks to address, and while the
interpretation and analysis of self-determination and its related concepts
presented in Part I may not entirely meet such a rigorous test, it goes some way
to providing the philosophical foundation for a normative framework from
which coherent and effective international responses might be developed.
Self-determination’s origin in the liberal democratic tradition of political
thought and its connections with individual autonomy offer a powerful basis on
which norms could be constructed by which PIFGs could assert their identity in
the internal workings of the state of which they are a part, all the while
enhancing the legitimacy of the state externally to the international community
on the basis of popular sovereignty. The challenges of self-determination
increase markedly when PIFGs, most notably nationalities, seek to alter their
relationship to the state of which they are a part, and these difficulties increase
further still when emerging nationalism threatens the existence of the state,
which by necessity involves the international society of states.
                                                        46 As Bartkus notes in The Dynamics of Secession, secessionist groups can be dissuaded by a
significant increase in the ‘costs’ of secession, and such demands could be seen as a significant
increase in such costs.
47 Buchheit, Secession, 7.
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While no one theory of secessionist self-determination is entirely
successful in revealing coherent norms, self-determination’s grounding in liberal
democratic theory, specifically its orientation towards the achievement and
insurance of human rights points to a logical and coherent approach by which
the international community could develop consistent and practicable norms to
guide their responses to such situations. What can be called the well-being
argument for secession strikes at the core of this tradition, given its emphasis on
achieving and maintaining human rights as well as providing not only a
principled, last-resort mechanism for the fulfilment of national aspirations but
also a means to limit the active application of self-determination in such a way
that might ultimately permit independence as a form of redress of serious
wrongs by a state. At the same time, this method places the well-being of the
individual and humane government at the centre of the debate and works to
incentivise all parties to find solutions that ensure at least the maintenance if
not the significant enhancement of the rights and the meaningful inclusion of all
citizens within any given state.
However, as was stressed at the outset of this study, an examination of
the theory and philosophical lineage of self-determination, while critical, is
insufficient to explain fully why or even how the international community
responds to emerging nationalism and cannot on its own come to grips with the
full extent the challenges that self-determination entails. To get closer to this
goal, as Buchheit articulated it above, it has be acknowledged first that theory
can be very separate from practice and that even when they are conjoined, the
context in which ideas are understood is of fundamental import to norms, both in
terms of what actors are part of this creative and evolutionary process and what
other strategic and normative factors are at work. In other words, there is a
dynamic connection between the ideas and the context in which they are active
that constructs a normative framework and shapes its evolution.
With the theoretical observations of Part I in mind, Part II of this study
attempts to analyse selected interpretations and applications of selfdetermination in an effort to trace the evolution of the concept up to the latetwentieth century, just prior to the end of the Cold War. The aim of Part II is
to highlight the international community’s normative responses to selfdetermination, emerging nationalism and state fragmentation by drawing careful
attention to the intricate connections between ideas, structures and forces that
were at work at key junctures during this lengthy time-span and to evaluate
whether there has been any congruence between the theoretical framework
outlined in Part I and the understanding of self-determination that states have
collectively held and acted on over time.
63
As the following, selective narrative will reveal, the evolution of these
normative responses has not been a teleological progression. Since the first
appearance of self-determination as an international political concept in
seventeenth century Europe, the idea has been debated, interpreted and
employed in various ways leading to different outcomes that have had a range of
implications for the future. Part I suggested the basis on which a coherent and
practicable normative framework might develop, yet the nature, scale and scope
of these responses have evolved over time for many reasons, but in each case,
there is a link to the structure of the international system that is far more than
coincidental. Accordingly, a principal concern of the following chapters is to
examine in what ways and how extensively changes in the structure of the
international community and the forces affecting it have played in the
understanding and use of self-determination.""