#### premio tesi di dottorato

ISSN 2612-8039 (PRINT) | ISSN 2612-8020 (ONLINE)

– 76 –

#### PREMIO TESI DI DOTTORATO

#### Commissione giudicatrice, anno 2018

Vincenzo Varano, *Presidente della Commissione*

Tito Arecchi, *Area Scientifica* Aldo Bompani, *Area delle Scienze Sociali* Mario Caciagli, *Area delle Scienze Sociali* Franco Cambi, *Area Umanistica* Paolo Felli, *Area Tecnologica* Giancarlo Garfagnini, *Area Umanistica* Roberto Genesio, *Area Tecnologica* Flavio Moroni, *Area Biomedica* Adolfo Pazzagli, *Area Biomedica* Giuliano Pinto, *Area Umanistica* Vincenzo Schettino, *Area Scientifica* Luca Uzielli, *Area Tecnologica* Graziella Vescovini, *Area Umanistica*

# **Secession and Referendum**

A new Dimension of International Law on Territorial Changes?

Firenze University Press 2019

Giulia Landi, *Secession and Referendum. A new Dimension of International Law on Territorial Changes?*, © 2020 Author(s), content CC BY 4.0 International, metadata CC0 1.0 Universal, published by Firenze University Press (www.fupress.com), ISSN 2612-8020 (online), ISBN 978-88-6453-981-2 (online PDF)

Secession and Referendum : a new Dimension of International Law on Territorial Changes? / Giulia Landi. – Firenze : Firenze University Press, 2019. (Premio Tesi di Dottorato; 76) https://www.fupress.com/isbn/9788864539812

ISSN 2612-8039 (print) ISSN 2612-8020 (online) ISBN 978-88-6453-980-5 (print) ISBN 978-88-6453-981-2 (online PDF)

Graphic design: Alberto Pizarro Fernández, Lettera Meccanica SRLs Front cover: © Vchalup | Dreamstime.com

\*\*\*

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#### *Firenze University Press Editorial Board*

M. Garzaniti (Editor-in-Chief), M.E. Alberti, M. Boddi, A. Bucelli, R. Casalbuoni, A. Dolfi, R. Ferrise, M.C. Grisolia, P. Guarnieri, R. Lanfredini, P. Lo Nostro, G. Mari, A. Mariani, P.M. Mariano, S. Marinai, R. Minuti, P. Nanni, A. Orlandi, A. Perulli, G. Pratesi.

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5

**Contents 5**

**1. Research Question and Preliminary Remarks 12**

**1.1 Secession between international and domestic law 13**

**1.2 Secession and/or autonomy under domestic law 17**

**1.3 Is international law giving some guidelines to secessionist processes? 19**

**1.4 Secession and territorial referenda: a complex interplay 20**

**2. Methodology and Structure 22**

**2.1 Methodology 22**

**2.2 Structure 23**

**1. From a Political Principle to a Legal Rule 26**

**1.1 Self-determination after World War I 27**

**1.2 Self-determination and the Mandate System in the Covenant of the League of Nations 28**

**2. The purport of self-determination in the UN Practice 32**

**3. Self-Determination in human rights law: individual and collective nature of the right 37**

**Only a colonial peoples' right? Trajectories of self-determination in**

**Contents**

**Introduction**

**Chapter 1**

**International law**

© 2019 Author(s)

Published by Firenze University Press

Firenze University Press Università degli Studi di Firenze via Cittadella, 7, 50144 Firenze, Italy www.fupress.com

*This book is printed on acid-free paper Printed in Italy*

# **Contents**

5 Giulia Landi, *Secession and Referendum. A new Dimension of International Law on Territorial Changes?*, © 2020 Author(s), content CC BY 4.0 International, metadata CC0 1.0 Universal, published by Firenze University Press (www.fupress.com), ISSN 2612-8020 (online), ISBN 978-88-6453-981-2 (online PDF)

7

**4.1 Secession and self-determination: different terms with different**

**1. Plebiscites and referenda: two terms for two types of popular**

**2. At the origins of popular consultations on territorial changes:**

**Chapter 3**

**meanings 101**

**4.2 Possible units entitled to seek secession 107**

**5. Conclusions 110**

**Territorial Referenda: Will of the People and Statehood in International Law**

**consultations 116**

**the plebiscites 118**

**2.1 Main requirements of the Plebiscites carried out after World War I 119**

**Saar Basin 124**

**2.3 The plebiscites under the Versailles Treaty: a critical assessment 126**

**3. The UN and plebiscites held during the decolonisation period 127**

**3.2 Western Sahara 133**

**3.3 East Timor 136**

**4. The focus of the research: territorial referenda 140**

**referendum to validate a territorial change 143**

**4.2 Arguments against the role of territorial referenda in international law 147**

**Quebec 156**

**5.1 Quebec and Canada: between coexistence and secession 157**

**referenda and negotiations 159**

**6. Negotiating secession for Scotland 163**

**4.1 Arguments in favour of an international legal obligation to conduct a**

**5. Territorial referenda as the first step towards negotiations: the case of**

**5.2 Reference Re Secession of Quebec: the interplay between territorial**

**2.2 The League of Nations and popular consultations: the Plebiscite in the**

**3.1 The role of case-law in establishing a legal right to self-determination 39**

**3.2 Human Rights Bodies and Self-Determination 42**

**4 Controversial issues on self-determination: (too) many claimants? 44**

**4.1 Still in search for a definition of people 44**

**determination? 46**

**5. Self-determination beyond decolonization: contemporary meanings 50**

**6. Conclusion 53**

**1. Secession in international law: a word in search of a definition 59**

**1.1 Agreed secession in the federation between Eritrea and Ethiopia 62**

**1.2 The Scottish example of secession by consent 63**

**1.3 Defining unilateral secession 65**

**2. Legal approaches to secession 67**

**2.1 Prohibition of secession under international law 67**

**2.2 Neutrality of international law towards secession 69**

**2.3 The remedial right theory 69**

**3. International due requirements for secession 87**

**3.1 The ban on the use of force 90**

**3.2 The respect of the** *uti possidetis juris* **principle 92**

**3.3 The role of territorial referendum 95**

**3.4 Crimea 96**

**4. Dis-entangling secession from self-determination: a proposal 99**

**4.2 Minorities and indigenous peoples: do they have a right to self-**

**Chapter 2**

**The Contested Right to Secede**

7 6 7

9

**2.2 Code of Good Practice on Referendums 206**

**3. Procedural standards of the Referendum in Crimea 209**

**consolidation of international standards 210**

**4. Between intervention and recognition 213**

**4.1 Theories of recognition 214**

**4.2 International responses to territorial referenda 217**

**5. Conclusions 225**

**5.1 Requirements for holding territorial referenda 226**

**relationship 227**

**1. Secession: old but new phenomenon 231**

**2. Territorial referendum in international law 234**

**puzzle 239**

**4. Conclusions 243**

**List of Abbreviations 244**

**Bibliography 246**

**Acknowledgments 260**

**3. Secession and referendum in international law: the attempt to solve the**

**5.2 Recognition, statehood and secession through referendum: a thorny**

**Conclusions**

**3.1 The Venice Commission and the referendum in Crimea: further**

**6.1 Scotland towards a devo-max option 163**

**6.2 Territorial referendum in the Edinburgh Agreement 164**

**6.3 The Scottish referendum and international law on territorial changes 166**

**referendum 167**

**the case of Uzbekistan 169**

**Catalonia 172**

8.2 From binding to non-binding referendum 179

**the** *opinio juris* **182**

**8.1 Catalonia in the storm: the years 2006-2017 174**

**8.3 The Spanish Constitutional Court's ruling 259/2015 180**

**8.4 Territorial referenda, secession and the right to decide in the Catalan**

**8.5 The October 2017 Referendum and the opposition of the Spanish central Government 185**

**9. The referendum in Crimea: an international legal perspective 188**

**9.1 The (mis)use of referendum in Crimea 189**

**9.2 Legal grounds for the referendum in Crimea: a difficult interpretation 191**

**10. Conclusions 193**

**1. Introduction 198**

**2. Montenegro: acquiring statehood through a referendum 199**

**international and domestic law 201**

**Requirements for a free and fair territorial referendum..and beyond**

**2.1.The organisation of the referendum in Montenegro: between**

**debate: elements in favour and against the consolidation of**

**Chapter 4**

**8. Constitutionalising Secession through Referendum (II): the secession of**

**6.4 A model for territorial referenda: requirements of the Scottish**

**7. Constitutionalising secession through referendum (I):**

10 11

**Introduction**

Secession and territorial referendum. At a first glance, it seems a very bad-matched couple. How can the right to secede come to terms with one of the most important means used to enhance popular aggregation? Although the matching sounds strange, it can be noticed that secession and territorial referendum share at least one feature: both of them are at the border between international and domestic law. As far as the former is concerned, secession entails the relationship between the central government and sub-national units and, where successful, it acquires importance from the point of view of international law on States' creation. As regards referenda, they are not new to international law: they were used extensively after the first World War within the framework of the League of Nations to re-draw boundaries on the basis of the nationality principle. Then, they gain new momentum during the nineties with

In this general framework, the opportunity to link secessionist movements to territorial referenda is given by the last decade's State practice, which seems to confer a high value to territorial referenda by perceiving them as a means to legitimate territorial re-apportionments. Suffice it to mention a few examples: in 2009 Curacao voted for partial autonomy from the Netherlands through a referendum; in 2011 South Sudan declared independence after a referendum; and lastly in March 2013, the inhabitants of the Falkland Malvinas decided to maintain their status as Overseas Territory of the United Kingdom in a referendum.2 Moreover, 2014 started with the debated territorial referendum held in the Ukrainian region of Crimea,3 continued with the Scottish4 referendum dated 14 August and ended with the failed attempt by

1 See Y. Beigbeder: "*Referendum*" in Max Plank Encyclopedia of Public International Law, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law9780199231690e1088?rskey=C5ibck

2 A. Peters: "*The principle of uti possidetis iuris*" in C. Walter (eds.), Secession and Self-Determination

3 The events in Ukraine led to a huge debate among international legal scholars, due to the variety of legal issues raised by the secessionist struggle of the Crimean inhabitants, ranging from the right to secede to the ban on the use of force and non-intervention by third States. To have an overview of the most striking legal questions surrounding Crimea's independence it's useful to have a look at *Opinio juris Blog*, at http://opiniojuris.org/2014/03/06/really-violate-international-law-crimea-hold-referendumsecession/ and at *Questions of International Law,* at http://www.qil-qdi.org/category/zoom-out/?cat=19,

4 S. Tierney: *"Legal Issues Surrounding the Referendum on Independence for Scotland"*, European

the dissolution of Yugoslavia and the Soviet Union.1

&result=9&prd=EPIL, last visited 2 February 2015.

in International Law, Oxford, 2014, p. 134.

which devote a specific section to the topic.

Constitutional Law Review, 2013, vol. 9, n.3, pp. 359-390.

# **Introduction**

Secession and territorial referendum. At a first glance, it seems a very bad-matched couple. How can the right to secede come to terms with one of the most important means used to enhance popular aggregation? Although the matching sounds strange, it can be noticed that secession and territorial referendum share at least one feature: both of them are at the border between international and domestic law. As far as the former is concerned, secession entails the relationship between the central government and sub-national units and, where successful, it acquires importance from the point of view of international law on States' creation. As regards referenda, they are not new to international law: they were used extensively after the first World War within the framework of the League of Nations to re-draw boundaries on the basis of the nationality principle. Then, they gain new momentum during the nineties with the dissolution of Yugoslavia and the Soviet Union.1

In this general framework, the opportunity to link secessionist movements to territorial referenda is given by the last decade's State practice, which seems to confer a high value to territorial referenda by perceiving them as a means to legitimate territorial re-apportionments. Suffice it to mention a few examples: in 2009 Curacao voted for partial autonomy from the Netherlands through a referendum; in 2011 South Sudan declared independence after a referendum; and lastly in March 2013, the inhabitants of the Falkland Malvinas decided to maintain their status as Overseas Territory of the United Kingdom in a referendum.2 Moreover, 2014 started with the debated territorial referendum held in the Ukrainian region of Crimea,3 continued with the Scottish4 referendum dated 14 August and ended with the failed attempt by

4 S. Tierney: *"Legal Issues Surrounding the Referendum on Independence for Scotland"*, European Constitutional Law Review, 2013, vol. 9, n.3, pp. 359-390.

1 See Y. Beigbeder: "*Referendum*" in Max Plank Encyclopedia of Public International Law, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law9780199231690e1088?rskey=C5ibck &result=9&prd=EPIL, last visited 2 February 2015.

2 A. Peters: "*The principle of uti possidetis iuris*" in C. Walter (eds.), Secession and Self-Determination in International Law, Oxford, 2014, p. 134.

3 The events in Ukraine led to a huge debate among international legal scholars, due to the variety of legal issues raised by the secessionist struggle of the Crimean inhabitants, ranging from the right to secede to the ban on the use of force and non-intervention by third States. To have an overview of the most striking legal questions surrounding Crimea's independence it's useful to have a look at *Opinio juris Blog*, at http://opiniojuris.org/2014/03/06/really-violate-international-law-crimea-hold-referendumsecession/ and at *Questions of International Law,* at http://www.qil-qdi.org/category/zoom-out/?cat=19, which devote a specific section to the topic.

the inhabitants of Catalonia to resort to popular consultation to gain independence from Spain.5 The age of seceding referenda, as it could be labelled, has not terminated yet. In 2017, when this research was about to be completed, Catalonia had just held a referendum about secession from Spain, in which over 90% of the votes supported independence.6

#### **1. Research Question and Preliminary Remarks**

In light of the above, the research question of the thesis will be whether according to international law the referendum is either a sufficient or a necessary condition for secession, or both.7 Since the research aims at discovering if there is an obligation to conduct a referendum to secede, grounded in the international legal order, it partly leaves aside an analysis of the theories about statehood and recognition in international law, which will be proper of a study focusing on the debate over democratic statehood in international law.Considering that practice of secession is so varied, the fact that the only common facet is that sub-units claim that with a referendum they can legitimately constitute themselves as independent has to be underlined and cannot be ignored. However, while leaving the in-depth study of legal issues relating to recognition and creation of statehood to another piece of research, some topics such as the respect of the principle of effectiveness8 and of the Montevideo criteria,9 are

13

established State, provided that it *de facto* exists. Bandinter Commission, Opinion n. 1, reprinted in Eu-

9 The new subject of international law has to effectively establish itself satisfying the criteria for statehood set in the Montevideo Convention. The 1933 Montevideo Convention requires a State to have a defined territory, a permanent population and a government. Those are commonly referred to as the "*classical statehood criteria*". *Montevideo Convention on the Rights and Duties of States*, signed on 26 December 1933, entered into force on 26 December 1934, reprinted in The American Journal of Interna-

10 See M. Weller: "Secession and Self-Determination in Western Europe. The Case of Catalonia", 19 October 2017, https://www.ejiltalk.org/secession-and-self-determination-in-western-europe-the-case-of-

11 As M. Kohen explains, "in cases where the parent State consent to separation, the process is that of devolution rather than secession. See M.G. Kohen:*" Création d'Etats en droit international contem-*

not ignored in this thesis. For secession, in fact, recognition remains crucial, "*if not for statehood as such, then for the ability of an emerging State to actualize its statehood through international intercourse and membership in international relations*".10 For instance, if we were to find that secession carried out via referendum receives positive responses by the members of the international community only when conducted in a pacified manner and in compliance with certain international standards, we might even argue that the referendum could compensate for the lack of consent to secession by the parent State. As a result, the focus will be on states' responses to secession, depending on how and under which circumstances the popular consultation is conducted. Two major cases can be detected: international reactions to seceding referenda conducted (i) in a pacific framework within wellestablished democracies and (ii) in the context of the use of force and intervention by a third party, even in countries where minority rights are respected. For both groups, a further issue of distinction is whether or not referenda are held in compliance with procedural requirements. A study of international reactions in the cases above mentioned will help shed light on the possible emergence and consolidation of an international rule pursuant to which secession can lawfully occur through a

In the opening it was affirmed that secession and referendum have a double nature, as they lie at the intersection between international and domestic law. The inquiry into the double nature of the right to secede will be conducted from the international legal perspective, but EU law and to a certain extent constitutional law issues will not be set aside. International legal scholars approaching seceding movements adopt different perspectives. At one side of the spectrum, for instance, a broad notion of secession can be embraced, one which encompasses cases of both separation and dismemberment, so that secession takes place every time a new entity is formed form a pre-existing State. At the other side, it could be considered, citing Kohen, that "*secession is the creation of a new independent entity through the separation of part of the territory and population of an existing State, without the consent of the latter".*11 Between 2001 and 2003 the Consortium on International Dispute Resolu-

referendum.

**1.1 Secession between international and domestic law**

ropean Journal of International Law, 1992, vol. 1, p. 182-183.

tional Law (Supplement), 1934, vol. 28, p. 75.

catalonia/#more-15619

5 E. R. Bartlett Castellà: "*Scotland and Catalonia: Two Historic Nations Challenge a Three Hundred Year- Old Status Quo*", American Journal of Social Sciences, 2014, vol.3, n.4, pp. 63-75.

6 The government of Catalonia published the official results of the referendum. Figures show that 90.8% of the vote casted were in favour of independence, although the turnout was 42%. The declaration of independence signed by the Prime Minister of Catalonia Puigdemont has been freezed at the time this research was finished.

http://www.catalangovernment.eu/pres\_gov/AppJava/government/pressnotice/303544/catalan-selfdetermination-referendum.html. Alongside the freezing of the declaration, on Feb. 2019 12 people were put on trial in front of the Supreme Court for their participation to the events leading to 2017 secession. These include also Oriol Junqueras, former Catalan Vice President, charged for his connection to the administration of the 2017 referendum.

7 See A. Peters: "*Populist International Law? The Suspended Independence and the Normative Value of the Referendum on Catalonia*", EJILTALK, Blog of the European Journal of International Law, 12 October 2017, https://www.ejiltalk.org/populist-international-law-the-suspended-independence-and-thenormative-value-of-the-referendum-on-catalonia/

8 The pivotal role of effectiveness against the existence of international rules governing the establishment of States dates back to the Kelsenian theory of the legal fact. For the establishment of States, Kelsen claims that, "*ce qui est décisif, et seul décisif, c'est l'effectivité de l'autorité nouvelle, c'est l'efficacité de l'ordre nouveau"* See H. Kelsen: "*La naissance de l'Etat et la formation de sa nationalitè. Les principes, leur application au cas de la Tchecoslovaquieˮ*, Rivista Italiana di Diritto Internazionale, 1929, vol. 3, p. 620. In the same vein see also A. Ruiz, Gli Enti Soggetto dell'Ordinamento Internazionale, Milano, 1951, pp. 178-179; V.D. Degan: "*Création et disparition de l'Etat (à la lumière de trois fédérations multiethniques en Europe)ˮ*, Recueil des Cours, 1999, vol. 279, p. 227. In 1991 the Badinter Commission restated that "*the existence or disappearance of a State is a question of fact*", thus confirming that international law does not have a key role in States' creation. In other words, international law regulates neither the process of evolution of a simple group into a new entity, nor the existence of an

not ignored in this thesis. For secession, in fact, recognition remains crucial, "*if not for statehood as such, then for the ability of an emerging State to actualize its statehood through international intercourse and membership in international relations*".10 For instance, if we were to find that secession carried out via referendum receives positive responses by the members of the international community only when conducted in a pacified manner and in compliance with certain international standards, we might even argue that the referendum could compensate for the lack of consent to secession by the parent State. As a result, the focus will be on states' responses to secession, depending on how and under which circumstances the popular consultation is conducted. Two major cases can be detected: international reactions to seceding referenda conducted (i) in a pacific framework within wellestablished democracies and (ii) in the context of the use of force and intervention by a third party, even in countries where minority rights are respected. For both groups, a further issue of distinction is whether or not referenda are held in compliance with procedural requirements. A study of international reactions in the cases above mentioned will help shed light on the possible emergence and consolidation of an international rule pursuant to which secession can lawfully occur through a referendum.

#### **1.1 Secession between international and domestic law**

the inhabitants of Catalonia to resort to popular consultation to gain independence from Spain.5 The age of seceding referenda, as it could be labelled, has not terminated yet. In 2017, when this research was about to be completed, Catalonia had just held a referendum about secession from Spain, in which over 90% of the votes sup-

In light of the above, the research question of the thesis will be whether according to international law the referendum is either a sufficient or a necessary condition for secession, or both.7 Since the research aims at discovering if there is an obligation to conduct a referendum to secede, grounded in the international legal order, it partly leaves aside an analysis of the theories about statehood and recognition in international law, which will be proper of a study focusing on the debate over democratic statehood in international law.Considering that practice of secession is so varied, the fact that the only common facet is that sub-units claim that with a referendum they can legitimately constitute themselves as independent has to be underlined and cannot be ignored. However, while leaving the in-depth study of legal issues relating to recognition and creation of statehood to another piece of research, some topics such as the respect of the principle of effectiveness8 and of the Montevideo criteria,9 are

5 E. R. Bartlett Castellà: "*Scotland and Catalonia: Two Historic Nations Challenge a Three Hundred*

6 The government of Catalonia published the official results of the referendum. Figures show that 90.8% of the vote casted were in favour of independence, although the turnout was 42%. The declaration of independence signed by the Prime Minister of Catalonia Puigdemont has been freezed at the time this research was finished. http://www.catalangovernment.eu/pres\_gov/AppJava/government/pressnotice/303544/catalan-selfdetermination-referendum.html. Alongside the freezing of the declaration, on Feb. 2019 12 people were put on trial in front of the Supreme Court for their participation to the events leading to 2017 secession. These include also Oriol Junqueras, former Catalan Vice President, charged for his connection to the

7 See A. Peters: "*Populist International Law? The Suspended Independence and the Normative Value of the Referendum on Catalonia*", EJILTALK, Blog of the European Journal of International Law, 12 October 2017, https://www.ejiltalk.org/populist-international-law-the-suspended-independence-and-the-

8 The pivotal role of effectiveness against the existence of international rules governing the establishment of States dates back to the Kelsenian theory of the legal fact. For the establishment of States, Kelsen claims that, "*ce qui est décisif, et seul décisif, c'est l'effectivité de l'autorité nouvelle, c'est l'efficacité de l'ordre nouveau"* See H. Kelsen: "*La naissance de l'Etat et la formation de sa nationalitè. Les principes, leur application au cas de la Tchecoslovaquieˮ*, Rivista Italiana di Diritto Internazionale, 1929, vol. 3, p. 620. In the same vein see also A. Ruiz, Gli Enti Soggetto dell'Ordinamento Internazionale, Milano, 1951, pp. 178-179; V.D. Degan: "*Création et disparition de l'Etat (à la lumière de trois fédérations multiethniques en Europe)ˮ*, Recueil des Cours, 1999, vol. 279, p. 227. In 1991 the Badinter Commission restated that "*the existence or disappearance of a State is a question of fact*", thus confirming that international law does not have a key role in States' creation. In other words, international law regulates neither the process of evolution of a simple group into a new entity, nor the existence of an

*Year- Old Status Quo*", American Journal of Social Sciences, 2014, vol.3, n.4, pp. 63-75.

ported independence.6

administration of the 2017 referendum.

normative-value-of-the-referendum-on-catalonia/

**1. Research Question and Preliminary Remarks**

In the opening it was affirmed that secession and referendum have a double nature, as they lie at the intersection between international and domestic law. The inquiry into the double nature of the right to secede will be conducted from the international legal perspective, but EU law and to a certain extent constitutional law issues will not be set aside. International legal scholars approaching seceding movements adopt different perspectives. At one side of the spectrum, for instance, a broad notion of secession can be embraced, one which encompasses cases of both separation and dismemberment, so that secession takes place every time a new entity is formed form a pre-existing State. At the other side, it could be considered, citing Kohen, that "*secession is the creation of a new independent entity through the separation of part of the territory and population of an existing State, without the consent of the latter".*11 Between 2001 and 2003 the Consortium on International Dispute Resolu-

established State, provided that it *de facto* exists. Bandinter Commission, Opinion n. 1, reprinted in European Journal of International Law, 1992, vol. 1, p. 182-183.

9 The new subject of international law has to effectively establish itself satisfying the criteria for statehood set in the Montevideo Convention. The 1933 Montevideo Convention requires a State to have a defined territory, a permanent population and a government. Those are commonly referred to as the "*classical statehood criteria*". *Montevideo Convention on the Rights and Duties of States*, signed on 26 December 1933, entered into force on 26 December 1934, reprinted in The American Journal of International Law (Supplement), 1934, vol. 28, p. 75.

10 See M. Weller: "Secession and Self-Determination in Western Europe. The Case of Catalonia", 19 October 2017, https://www.ejiltalk.org/secession-and-self-determination-in-western-europe-the-case-ofcatalonia/#more-15619

11 As M. Kohen explains, "in cases where the parent State consent to separation, the process is that of devolution rather than secession. See M.G. Kohen:*" Création d'Etats en droit international contem-*

tion initiated a series of Regional Conferences on self-determination and secession – in Europe, USA, Commonwealth and Russia- promoted by the International Law Association and other leading international institutes such as the Asser Institute. Each regional conference adopted a final document focusing on a definition of secession and self-determination under current international law. The Western Conferences defined secession as arising *"whenever a significant portion of the population of a given territory being part of a State, expresses by word or deed the wish to withdraw from the State and become a State in itself or become part of another State*".12 The Commonwealth Conference opposed that definition, claiming that 1) the absence of any reference to self-determination could lead to consider secession as merely separatism; 2) secession, like self-determination, is inscribed to people, not to a portion of the population; 3) the definition lacks any sort of imposition to secessionist movements, such as the respect for the constitution of the parent State in order to be considered legitimate, so that even actions contrary to national and international law could be legitimated. Lastly, the American Conference drafted another definition recognizing the right to secede "*where the population of a territory is subjected to gross, discriminatory and continuing violations of fundamental rights directed against secessionist groups".13*

Regional differences in the interpretation and the application of international law are not uncommon but it is still possible to make some remarks: (i) contrary to the views expressed by the Commonwealth Conference, seceding attempts usually are not grounded on the Constitution of a State, unless the Constitution itself provides for cases of separation of part of the territory. Moreover, (ii) seceding struggles are frequently carried out by sub-national units whose rights are respected and usually constitutionally guaranteed. Lastly, (iii) the process towards secession is a constant flux, so that it may well be that the parent State eventually gives its consent to the territorial change under certain conditions.

The present study will address each one of these issues, with a view to present a notion of secession which responds to the recent practice in this field. In any case, differences between the definitions are to be justified by the unclear status of secession under international law. The major challenge facing legal researchers about secession is that there are no international instruments upon which one can rely to define secession, no provisions directly defining and regulating it. While it is true that no right to secede exists under international law as it now stands, this does not imply that international law prohibits secession. In the words used by the Canadian Supreme Court in the *Reference Re Secession of Quebec* case, "*international law contains neither a right of unilateral secession nor the explicit denial of such right*".14 Arguably, States have an interest in converting neutrality of international law into a

15

19 L. Bucheit, Secession: the Legitimacy of Self-Determination, New-Haven- London, 1978 p. 198; T.D.

ban on secession, justifying this approach by virtue of the fact that secession endangers territorial integrity. This is demonstrated by the reluctance to use the term secession in the international arena: in the 1978 *Vienna Convention on Succession of States in respect of Treaties*, art. 34 sets no distinction between devolution and secession. Rather, the wording used is " *separation of part of a State".15* In addition, in the *Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations* (hereinafter the *Declaration on Friendly Relations)* principle V states that "*the emergence into any other political status freely determined by a 'people' constitutes a mode of implementing the right to self-determination, in addition to the establishment of an independent State, the free association with or integration in an independent State*".16 The *Declaration on Friendly Relations* refers to the *establishment*

However, principle V gives the chance to set out some legal problems linked to the definition of secession, notably (i) the relationship with the right to selfdetermination and (ii) the reasons upon which secession relies. Starting from the latter point, over the last decade the international community has witnessed several examples of secessionist movements. Although the claim on statehood is often based upon a mixture of arguments encompassing violation of human rights or the right to self-determination, the ultimate *ratio* of separatism may vary. Sometimes, struggles were aimed at establishing a new State, as was the case with Kosovo, South Ossetia or South Sudan. Some other times, for example in the case of the Crimean region within Ukraine, independent struggles arose from the will to become part of another

States' views on claims to statehood are too different to draw a common line, yet there is a hypothesis towards which a considerable group of scholars as well as some states have converged: it is secession in response to serious violations of human rights referred to above. This theory is known as the theory of *remedial secession,*18 according to which a sub-national group is entitled to secede from the parent State only when human rights of its members are seriously breached. Apart from its strict link with human rights law, the remedial right theory takes strength from a specific event: the secession of Bangladesh19. According to Crawford,20 Bangladesh is the

15 *Vienna Convention on Succession of States in respect of Treaties*, signed at Vienna on 23 August 1978, entered into force on 6 November 1996. See United Nations, Treaty Series, vol. 1946, p. 3. 16 *Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations* (Declaration concerning Friendly

Relations), annexed to the General Assembly Resolution A/Res/2625 dated 24 October 1970. 17 See M. G. Kohen (ed.), Secession: International Law Perspectives, Cambridge, 2006, pp. 4-5. 18 See L.M. Frakel: "*International Law on Secession: New Rules for a new Era*", Huston Journal of International Law, 1992, n. 14, pp. 521-564; D. Mursweiek: "*The Issue of a Right to Secession – Reconsidered*" in C. Toumuschat (ed.) Modern Law of Self-Determination, Dordrecht-Boston-London, 1993, pp. 38-39; S. Van den Driest, Remedial Secession: A Right to External Self-Determination as a Remedy

Musgrave Self-Determination and National Minorities, Oxford, 1997, p. 189.

of an independent State, not to secession.17

State, namely the Russian Federation.

to Serious Injustices?, Cambridge, 2013.

*porain"*, Bancaja Euromediterranean Courses of International Law, vol. 6, Pamplona, Centro Internacional Bancaja para la Paz y el Desarrollo, 2002, p. 571.

12 J. Dahlitz (ed.), Secession and International Law. Conflict Avoidance – Regional Reappraisals, United Nations, New York, Geneva, 2003, pp. 75-85.

13 Ibid.p. 84.

14 Supreme Court of Canada, *Reference re Secession of Quebec,* 20 August 1998, reprinted in International Law Reports, 1998, n. 161, p. 576 and ss., para.61.

tion initiated a series of Regional Conferences on self-determination and secession – in Europe, USA, Commonwealth and Russia- promoted by the International Law Association and other leading international institutes such as the Asser Institute. Each regional conference adopted a final document focusing on a definition of secession and self-determination under current international law. The Western Conferences defined secession as arising *"whenever a significant portion of the population of a given territory being part of a State, expresses by word or deed the wish to withdraw from the State and become a State in itself or become part of another State*".12 The Commonwealth Conference opposed that definition, claiming that 1) the absence of any reference to self-determination could lead to consider secession as merely separatism; 2) secession, like self-determination, is inscribed to people, not to a portion of the population; 3) the definition lacks any sort of imposition to secessionist movements, such as the respect for the constitution of the parent State in order to be considered legitimate, so that even actions contrary to national and international law could be legitimated. Lastly, the American Conference drafted another definition recognizing the right to secede "*where the population of a territory is subjected to gross, discriminatory and continuing violations of fundamental rights di-*

Regional differences in the interpretation and the application of international law are not uncommon but it is still possible to make some remarks: (i) contrary to the views expressed by the Commonwealth Conference, seceding attempts usually are not grounded on the Constitution of a State, unless the Constitution itself provides for cases of separation of part of the territory. Moreover, (ii) seceding struggles are frequently carried out by sub-national units whose rights are respected and usually constitutionally guaranteed. Lastly, (iii) the process towards secession is a constant flux, so that it may well be that the parent State eventually gives its consent to the territo-

The present study will address each one of these issues, with a view to present a notion of secession which responds to the recent practice in this field. In any case, differences between the definitions are to be justified by the unclear status of secession under international law. The major challenge facing legal researchers about secession is that there are no international instruments upon which one can rely to define secession, no provisions directly defining and regulating it. While it is true that no right to secede exists under international law as it now stands, this does not imply that international law prohibits secession. In the words used by the Canadian Supreme Court in the *Reference Re Secession of Quebec* case, "*international law contains neither a right of unilateral secession nor the explicit denial of such right*".14 Arguably, States have an interest in converting neutrality of international law into a

*porain"*, Bancaja Euromediterranean Courses of International Law, vol. 6, Pamplona, Centro Internac-

12 J. Dahlitz (ed.), Secession and International Law. Conflict Avoidance – Regional Reappraisals, United

14 Supreme Court of Canada, *Reference re Secession of Quebec,* 20 August 1998, reprinted in Interna-

*rected against secessionist groups".13*

rial change under certain conditions.

ional Bancaja para la Paz y el Desarrollo, 2002, p. 571.

tional Law Reports, 1998, n. 161, p. 576 and ss., para.61.

Nations, New York, Geneva, 2003, pp. 75-85.

13 Ibid.p. 84.

ban on secession, justifying this approach by virtue of the fact that secession endangers territorial integrity. This is demonstrated by the reluctance to use the term secession in the international arena: in the 1978 *Vienna Convention on Succession of States in respect of Treaties*, art. 34 sets no distinction between devolution and secession. Rather, the wording used is " *separation of part of a State".15* In addition, in the *Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations* (hereinafter the *Declaration on Friendly Relations)* principle V states that "*the emergence into any other political status freely determined by a 'people' constitutes a mode of implementing the right to self-determination, in addition to the establishment of an independent State, the free association with or integration in an independent State*".16 The *Declaration on Friendly Relations* refers to the *establishment* of an independent State, not to secession.17

However, principle V gives the chance to set out some legal problems linked to the definition of secession, notably (i) the relationship with the right to selfdetermination and (ii) the reasons upon which secession relies. Starting from the latter point, over the last decade the international community has witnessed several examples of secessionist movements. Although the claim on statehood is often based upon a mixture of arguments encompassing violation of human rights or the right to self-determination, the ultimate *ratio* of separatism may vary. Sometimes, struggles were aimed at establishing a new State, as was the case with Kosovo, South Ossetia or South Sudan. Some other times, for example in the case of the Crimean region within Ukraine, independent struggles arose from the will to become part of another State, namely the Russian Federation.

States' views on claims to statehood are too different to draw a common line, yet there is a hypothesis towards which a considerable group of scholars as well as some states have converged: it is secession in response to serious violations of human rights referred to above. This theory is known as the theory of *remedial secession,*18 according to which a sub-national group is entitled to secede from the parent State only when human rights of its members are seriously breached. Apart from its strict link with human rights law, the remedial right theory takes strength from a specific event: the secession of Bangladesh19. According to Crawford,20 Bangladesh is the

15 *Vienna Convention on Succession of States in respect of Treaties*, signed at Vienna on 23 August 1978, entered into force on 6 November 1996. See United Nations, Treaty Series, vol. 1946, p. 3.

16 *Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations* (Declaration concerning Friendly Relations), annexed to the General Assembly Resolution A/Res/2625 dated 24 October 1970.

17 See M. G. Kohen (ed.), Secession: International Law Perspectives, Cambridge, 2006, pp. 4-5.

18 See L.M. Frakel: "*International Law on Secession: New Rules for a new Era*", Huston Journal of International Law, 1992, n. 14, pp. 521-564; D. Mursweiek: "*The Issue of a Right to Secession – Reconsidered*" in C. Toumuschat (ed.) Modern Law of Self-Determination, Dordrecht-Boston-London, 1993, pp. 38-39; S. Van den Driest, Remedial Secession: A Right to External Self-Determination as a Remedy to Serious Injustices?, Cambridge, 2013.

19 L. Bucheit, Secession: the Legitimacy of Self-Determination, New-Haven- London, 1978 p. 198; T.D. Musgrave Self-Determination and National Minorities, Oxford, 1997, p. 189.

only case of successful secession occurred in the past decades and this is one of the factors influencing the support for the remedial secession. Whatever the case might be, current examples of secession have given a new impetus to the debate on international law on territorial changes.21 Although the remedial right theory has been acquiring increasing support, recent attempts to secede such as those carried out by Scotland or Catalonia, have occurred in States where sub-national communities have been respected and protected. Moreover, it has been observed above that secession is a complex process through which the attitude of the parent State varies and may even turn into a consent to secession, such as in the case of Scotland. As a result, an accurate scholar has to start the inquiry assuming that the clear-cut answers are almost impossible. These struggles towards secession cannot be included neither in the concepts of *remedial secession* nor in the framework of self–determination as a legal title grounded in the international legal order. The study therefore will question the legal soundness of the remedial right theory. Regarding the relationship with self-determination, Toumuschat defines the right to self-determination as "*a child of the General Assembly*".22 As it will be showed in the next Chapter, this claim finds its roots in the consistent practice of the UN which focused on self-determination of peoples, especially since the adoption of the *Declaration on the Granting of Independence to Colonial Countries and Peoples*. 23 However, self-determination as perceived within the framework of the UN does not include the right to establish an independent State for sub-national units of a sovereign State which are free to participate on the public State affairs.24

While international law still remains indecisive over secession, national legal orders may provide much more clear-cut answers. Needless to say, secession is legal when provided for by the Constitution of a certain State. Although the subject-matter of the present inquiry belongs to the international legal order, it is important to give a brief reappraisal on how domestic legal orders approach the phenomena of secession, since it is useful for acquiring a comprehensive view of the legal problems at stake. The Constitution of Burma dated 1947, for instance, granted such a right to

17

25 D. Raič, Statehood and the Law of Self-Determination, The Hague- London- New York, 2002, p. 313. 26 J. Hadley: "*The Way Opened, the Way Blocked: Assessing the Contrasting Fates of Chechnya and Kosovo"* in A. Pavković and P. Radan (eds.), On the Way to Statehood: Secession and Globalization,

27 S. Mancini: "*Secession and Self-Determination*", in M. Rosenfeld and A. Sajo (eds.), The Oxford

28 P. Radan: *Secessionist Referenda in International and Domestic Law*", Nationalism and Ethnic Poli-

29 J. Summers*: "Democracy, Minorities and International Law",* International Journal on Minority and

Handbook of Comparative Constitutional Law*,* Oxford, 2012, p. 482- 499.

Secessionist groups want their uniqueness to be recognized for a variety of reasons: their particular historical development as a community, their religion or culture. The ethnic composition of many States is indeed not homogeneous:29 sometimes multiethnicity is the result of historical territorial re-apportionments, such as in the case of Ukraine where the region of Crimea was historically Russian. Some other times ethnic diversity is embedded in the concept of statehood itself, like in the African continent where tribalism was the primitive form of statehood but it is still visible in contemporary States. The fact that practice gives many examples of secessions occurring in multi-ethnic States does not imply that minorities only resort to secession.

minorities settled within the Union of Burma. In particular, minority groups were entitled to exercise their right to secede ten years after the entry into force of the Burmese Constitution.25 The 1977 Constitution of the Soviet Union, then, provided for a right of secession for the Soviet Republics.26 Through these examples secession acquires a purely domestic dimension, which may lead to reconsider it as one among the possible means for facing territorial changes, plainly regulated by the legal system. Mancini in fact points out that it is necessary to adopt a comprehensive approach to secession, one that encompasses both its revolutionary and its institutionally conservative dimensions if we really want to understand it thoroughly. 27 In light of these assumptions, the study does not leave aside those cases in which the parent State has accepted the unilateral claim for secession by a sub-unit, either through the establishment of a procedure under domestic law or through a special agreement. Accordingly, a comprehensive approach requires not to look at secession as an isolated phenomenon, which entails only the creation of new States in international law, but rather as a part of a broader dynamic between a State and its subnational communities. From this perspective, secessionist claims concern both international and domestic law, in that the central government may either consider secession forbidden, or as one of the rights conferred upon the sub-national communities, subject to the necessary legal rules.28 Indeed, domestic law may set alternative solutions to secession which may nonetheless take into account and satisfy the requests

of seceding entities.

Hampshire, 2008, p. 86.

tics, 2012, vol.18, pp. 8-21.

Group Rights, 2009, vol.16, n. 2, pp. 266-268.

**1.2 Secession and/or autonomy under domestic law**

20 See J. Crawford, The Creation of States in International Law, 2006, pp. 110- 120, as well as the Report *"State practice and International Law in Relation to Unilateral Secession"* prepared for the Department of Justice of Canada in the case Reference Re Secession of Quebec, reprinted in A. Bayesfky ( ed.), Self-Determination in International Law: Quebec and Lessons Learned, The Hague- London- New York, 2000, pp. 3-65.

21 See, among the others, A. Tancredi: "*La Crisi in Crimea",* Diritti Umani e Diritto Internazionale, 2014, vol.8, pp. 485-487, as well as the huge contributions referred to in footnote 3.

22 C. Toumuschat: "*Secession and self-determination*" in M. G. Kohen, Secession: International Law Perspectives, cit., p. 37.

23 *Declaration on the Granting of Independence to Colonial Countries and Peoples*, adopted by General Assembly Resolution 1514 A/Res/1514 on 14 December 1960.

24 Scholars supports this view. See A. Cassese, Self-Determination of Peoples. A Legal Reappraisal, Cambridge, 1995, p. 61; A. Kiss "*The Peoples' Right to Secession*", Human Rights Law Journal, 1986, n. 7, p. 168; A. Pellet: "*Quel Avenir pour le Droit des Peoples à Disposer d'eux même?*", El Derecho Internacional en un Mondo en Transformacìon: Liber amicorum en Homenaje al Profesor Eduardo Jimenez de Arechaga*,* Montevideo, 1994, pp. 255-276; H. Hannum: "*Rethinking Self-Determination"*, Virginia Journal of International Law,1993, n. 34 p. 1, at pp. 45-47.

minorities settled within the Union of Burma. In particular, minority groups were entitled to exercise their right to secede ten years after the entry into force of the Burmese Constitution.25 The 1977 Constitution of the Soviet Union, then, provided for a right of secession for the Soviet Republics.26 Through these examples secession acquires a purely domestic dimension, which may lead to reconsider it as one among the possible means for facing territorial changes, plainly regulated by the legal system. Mancini in fact points out that it is necessary to adopt a comprehensive approach to secession, one that encompasses both its revolutionary and its institutionally conservative dimensions if we really want to understand it thoroughly. 27 In light of these assumptions, the study does not leave aside those cases in which the parent State has accepted the unilateral claim for secession by a sub-unit, either through the establishment of a procedure under domestic law or through a special agreement. Accordingly, a comprehensive approach requires not to look at secession as an isolated phenomenon, which entails only the creation of new States in international law, but rather as a part of a broader dynamic between a State and its subnational communities. From this perspective, secessionist claims concern both international and domestic law, in that the central government may either consider secession forbidden, or as one of the rights conferred upon the sub-national communities, subject to the necessary legal rules.28 Indeed, domestic law may set alternative solutions to secession which may nonetheless take into account and satisfy the requests of seceding entities.

#### **1.2 Secession and/or autonomy under domestic law**

only case of successful secession occurred in the past decades and this is one of the factors influencing the support for the remedial secession. Whatever the case might be, current examples of secession have given a new impetus to the debate on international law on territorial changes.21 Although the remedial right theory has been acquiring increasing support, recent attempts to secede such as those carried out by Scotland or Catalonia, have occurred in States where sub-national communities have been respected and protected. Moreover, it has been observed above that secession is a complex process through which the attitude of the parent State varies and may even turn into a consent to secession, such as in the case of Scotland. As a result, an accurate scholar has to start the inquiry assuming that the clear-cut answers are almost impossible. These struggles towards secession cannot be included neither in the concepts of *remedial secession* nor in the framework of self–determination as a legal title grounded in the international legal order. The study therefore will question the legal soundness of the remedial right theory. Regarding the relationship with self-determination, Toumuschat defines the right to self-determination as "*a child of the General Assembly*".22 As it will be showed in the next Chapter, this claim finds its roots in the consistent practice of the UN which focused on self-determination of peoples, especially since the adoption of the *Declaration on the Granting of Inde-*

ceived within the framework of the UN does not include the right to establish an independent State for sub-national units of a sovereign State which are free to partici-

While international law still remains indecisive over secession, national legal orders may provide much more clear-cut answers. Needless to say, secession is legal when provided for by the Constitution of a certain State. Although the subject-matter of the present inquiry belongs to the international legal order, it is important to give a brief reappraisal on how domestic legal orders approach the phenomena of secession, since it is useful for acquiring a comprehensive view of the legal problems at stake. The Constitution of Burma dated 1947, for instance, granted such a right to

20 See J. Crawford, The Creation of States in International Law, 2006, pp. 110- 120, as well as the Report *"State practice and International Law in Relation to Unilateral Secession"* prepared for the Department of Justice of Canada in the case Reference Re Secession of Quebec, reprinted in A. Bayesfky ( ed.), Self-Determination in International Law: Quebec and Lessons Learned, The Hague- London- New

21 See, among the others, A. Tancredi: "*La Crisi in Crimea",* Diritti Umani e Diritto Internazionale,

22 C. Toumuschat: "*Secession and self-determination*" in M. G. Kohen, Secession: International Law

23 *Declaration on the Granting of Independence to Colonial Countries and Peoples*, adopted by General

24 Scholars supports this view. See A. Cassese, Self-Determination of Peoples. A Legal Reappraisal, Cambridge, 1995, p. 61; A. Kiss "*The Peoples' Right to Secession*", Human Rights Law Journal, 1986, n. 7, p. 168; A. Pellet: "*Quel Avenir pour le Droit des Peoples à Disposer d'eux même?*", El Derecho Internacional en un Mondo en Transformacìon: Liber amicorum en Homenaje al Profesor Eduardo Jimenez de Arechaga*,* Montevideo, 1994, pp. 255-276; H. Hannum: "*Rethinking Self-Determination"*,

2014, vol.8, pp. 485-487, as well as the huge contributions referred to in footnote 3.

Assembly Resolution 1514 A/Res/1514 on 14 December 1960.

Virginia Journal of International Law,1993, n. 34 p. 1, at pp. 45-47.

23 However, self-determination as per-

*pendence to Colonial Countries and Peoples*.

pate on the public State affairs.24

York, 2000, pp. 3-65.

Perspectives, cit., p. 37.

Secessionist groups want their uniqueness to be recognized for a variety of reasons: their particular historical development as a community, their religion or culture. The ethnic composition of many States is indeed not homogeneous:29 sometimes multiethnicity is the result of historical territorial re-apportionments, such as in the case of Ukraine where the region of Crimea was historically Russian. Some other times ethnic diversity is embedded in the concept of statehood itself, like in the African continent where tribalism was the primitive form of statehood but it is still visible in contemporary States. The fact that practice gives many examples of secessions occurring in multi-ethnic States does not imply that minorities only resort to secession.

25 D. Raič, Statehood and the Law of Self-Determination, The Hague- London- New York, 2002, p. 313. 26 J. Hadley: "*The Way Opened, the Way Blocked: Assessing the Contrasting Fates of Chechnya and Kosovo"* in A. Pavković and P. Radan (eds.), On the Way to Statehood: Secession and Globalization, Hampshire, 2008, p. 86.

27 S. Mancini: "*Secession and Self-Determination*", in M. Rosenfeld and A. Sajo (eds.), The Oxford Handbook of Comparative Constitutional Law*,* Oxford, 2012, p. 482- 499.

28 P. Radan: *Secessionist Referenda in International and Domestic Law*", Nationalism and Ethnic Politics, 2012, vol.18, pp. 8-21.

29 J. Summers*: "Democracy, Minorities and International Law",* International Journal on Minority and Group Rights, 2009, vol.16, n. 2, pp. 266-268.

Indeed, the request of minorities is primarily autonomy and not secession;30 firstly searched at the internal level, and if not, through separation from the parent State. Acknowledging diversity and enacting specific rules to safeguard the collective uniqueness of a sub-national unit is a welcomed solution to avoid secessionists struggles. The most functioning measures are constitutional arrangements granting policy decision-making autonomy to portion of territories. According to Raič, territorial autonomy is a form of self-determination in that it enables the sub-national groups to affirm their uniqueness but at the same time it represents a concession made by the central government to pursue internal stability.31 On the same pattern, Hannum states that autonomy serves as a "*means of reinforcing their own sub-unit identity beyond that of being merely citizens of the State"*. 32 Granting autonomy empowers the group to enact specific legislation to set its annual budget, or to manage cultural and social affairs. In the Socialist Federal Republic of Yugoslavia (SFRY), for example, there were two autonomous provinces alongside six federal republics. 33 Another example is the Crimean region, with a different degree of autonomy compared to the other Ukrainian regions, on the basis of which the people of Crimea could establish their own institutions in order to promote their traditions, language and culture.34

In this framework, does International Law play an active role? In fact, States enjoy a wide discretion because the matter is confined to the domestic arena, provided that they respect fundamental human rights of the individual. The most popular choice to respond to seceding claims seems to be that of negotiating a new territorial settlement, through a process involving also a referendum. State practice confirms that negotiations followed by constitutional referenda with a view to settle a different territorial structure are frequent, Belgium, Canada and Ethiopia to mention only a few examples.35 The Basques in Spain enjoy territorial autonomy on the basis of the organic law 3/197936 of 18 December 1979. Greenland was granted autonomy by the *Greenland Home Rule Act*, Danish Act n. 57737 dated one year before. The Green-

19

39 See J. Chinn and S.D. Roper: *"Territorial Autonomy in Gagauz"*, Nationality Papers, vol. 26, n.1,

42 A. Tancredi, La Secessione in Diritto Internazionale, cit., p. 699, citing for a first elaboration of the procedural approach, *inter alia,* T. Franck*: "Communities in Transition: Autonomy, Self-Governance*

landers have appointed a Commission tasked with drafting recommendations on separation and a new *Home Rule Bill*. In one of its recommendations the Commission stated that people from Greenland were not struggling for independence tout court, but for " *an identity of their own, or rather for better possibilities of strengthening and developing their identity through increased self-responsibility".38*Art. 11 of the Constitution of Moldova, then, recognizes the autonomy of the Gagauz region. The preamble of the Gagauz Autonomy Act - which enables the establishment of the autonomous region- defines the granting as a *manifestation of the right to self-*

In the examples above self-determination is exercised within the borders of the State. When the requests for more autonomy are not followed by the parent State and independent struggles persist, the right to secede may come into play. In other words, secession would not be perceived as an extension of self-determination, but

So far it was seen that contrary to what one may think of secession, i.e. that it is a one-spot event whereby a new entity is born out of a pre-existing one, secession is a dynamic process which finds its roots in the domestic arena and may, eventually, reach the international arena. Taking the definition given by Crawford "*secession is the process by which a particular group seeks to separate itself from the State to which it belongs, and to create a new State".41* It is precisely the interpretation of

Pragmatically, secession is an internal issue up until the central government either accepts separation on the basis of domestic rules or manages to control the dialogue with the secessionist group. However, when the tensions between the parties are likely to put at risk the stability of the international system, in particular when there are serious violations of human rights, there is a growing trend in scholarly literature42 that maintains that international law may - in the vests of a "guardian", require the respect of a certain procedure. According to Tancredi, these rules can be collectively labelled the *due process for secession*, an emerging rather than an established set of international rules on State creation in cases of secession. The respect of procedural requirements, the argument continues, does not result in an international legal title to create a new subject of international law. The creation of state-

as an autonomous title. In Chapter 2 this position is advanced in detail.40

**1.3 Is international law giving some guidelines to secessionist processes?**

secession as a continuous process that is the point of departure of this study.

38 D. Raič, Statehood and the Law of Self-Determination, cit., p. 285.

40 A. Tancredi, La Secessione in Diritto Internazionale, Napoli, 2001, p. 24. 41 J. Crawford, The Creation of States in International Law, Cambridge, 1997, p. 85.

*and Independence"*, Proceedings of the American Society of International Law 1993, p. 261.

*determination*.

1998, p. 87.

39

30 J. Castellino: *"International Law and Self-Determination. Peoples, Indigenous Peoples and Minorities"* in C. Walter (ed.), Secession and Self Determination in International Law, cit., pp. 27-54.

31 D. Raič, Statehood and the Law of Self-Determination, cit., p. 281-283.

32 H. Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights, Philadelphia, 2011, p. 474.

33 For a comprehensive view on the formation, internal structure and dissolution of the SFRY see S. Trifunovska (ed.), Yugoslavia Through Documents: From Its Creation to Its Dissolution, Dordrecht- Boston-London, 1994.

34 See A. Peters: "*The Crimean Vote of March 2014 as an Abuse of the Institution of Territorial Referendum",* forthcoming in C. Calliess (ed), Liber amicorum Torsten Stein (2015), currently available online at http://papers.ssrn.com/sol3/papers.cfm?abstract\_id=2463536, last visited 4 February 2015.

35 P. Radan: "*Secession: a Word in Search of a Meaning*", cit., p. 18-34.

36 *Organic Law 3/1979 of 18 December on the Statute of Autonomy of the Basque Country* dated 18 December 1979, available in the on-line database of the European University Institute, Project European Union Democracy Observatory on Citizenship, http://eudo-citizenship.eu/databases/national-electorallaws/?search=1&name=&level=Regional&country=Spain&submit=Search.

37 *Greenland Home Rule Act*, *Act No. 577*, dated 29 November 1978, available http://www.stm.dk/\_p\_12712.html, site of the Danish Prime Minister's Office.

Indeed, the request of minorities is primarily autonomy and not secession;30 firstly searched at the internal level, and if not, through separation from the parent State. Acknowledging diversity and enacting specific rules to safeguard the collective uniqueness of a sub-national unit is a welcomed solution to avoid secessionists struggles. The most functioning measures are constitutional arrangements granting policy decision-making autonomy to portion of territories. According to Raič, territorial autonomy is a form of self-determination in that it enables the sub-national groups to affirm their uniqueness but at the same time it represents a concession made by the central government to pursue internal stability.31 On the same pattern, Hannum states that autonomy serves as a "*means of reinforcing their own sub-unit*

empowers the group to enact specific legislation to set its annual budget, or to manage cultural and social affairs. In the Socialist Federal Republic of Yugoslavia (SFRY), for example, there were two autonomous provinces alongside six federal republics. 33 Another example is the Crimean region, with a different degree of autonomy compared to the other Ukrainian regions, on the basis of which the people of Crimea could establish their own institutions in order to promote their traditions,

In this framework, does International Law play an active role? In fact, States enjoy a wide discretion because the matter is confined to the domestic arena, provided that they respect fundamental human rights of the individual. The most popular choice to respond to seceding claims seems to be that of negotiating a new territorial settlement, through a process involving also a referendum. State practice confirms that negotiations followed by constitutional referenda with a view to settle a different territorial structure are frequent, Belgium, Canada and Ethiopia to mention only a few examples.35 The Basques in Spain enjoy territorial autonomy on the basis of the organic law 3/197936 of 18 December 1979. Greenland was granted autonomy by the *Greenland Home Rule Act*, Danish Act n. 57737 dated one year before. The Green-

30 J. Castellino: *"International Law and Self-Determination. Peoples, Indigenous Peoples and Minorities"* in C. Walter (ed.), Secession and Self Determination in International Law, cit., pp. 27-54.

32 H. Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting

33 For a comprehensive view on the formation, internal structure and dissolution of the SFRY see S. Trifunovska (ed.), Yugoslavia Through Documents: From Its Creation to Its Dissolution, Dordrecht- Bos-

34 See A. Peters: "*The Crimean Vote of March 2014 as an Abuse of the Institution of Territorial Referendum",* forthcoming in C. Calliess (ed), Liber amicorum Torsten Stein (2015), currently available online at http://papers.ssrn.com/sol3/papers.cfm?abstract\_id=2463536, last visited 4 February 2015.

36 *Organic Law 3/1979 of 18 December on the Statute of Autonomy of the Basque Country* dated 18 December 1979, available in the on-line database of the European University Institute, Project European Union Democracy Observatory on Citizenship, http://eudo-citizenship.eu/databases/national-electoral-

37 *Greenland Home Rule Act*, *Act No. 577*, dated 29 November 1978, available

31 D. Raič, Statehood and the Law of Self-Determination, cit., p. 281-283.

35 P. Radan: "*Secession: a Word in Search of a Meaning*", cit., p. 18-34.

laws/?search=1&name=&level=Regional&country=Spain&submit=Search.

http://www.stm.dk/\_p\_12712.html, site of the Danish Prime Minister's Office.

32 Granting autonomy

*identity beyond that of being merely citizens of the State"*.

language and culture.34

Rights, Philadelphia, 2011, p. 474.

ton-London, 1994.

landers have appointed a Commission tasked with drafting recommendations on separation and a new *Home Rule Bill*. In one of its recommendations the Commission stated that people from Greenland were not struggling for independence tout court, but for " *an identity of their own, or rather for better possibilities of strengthening and developing their identity through increased self-responsibility".38*Art. 11 of the Constitution of Moldova, then, recognizes the autonomy of the Gagauz region. The preamble of the Gagauz Autonomy Act - which enables the establishment of the autonomous region- defines the granting as a *manifestation of the right to selfdetermination*. 39

In the examples above self-determination is exercised within the borders of the State. When the requests for more autonomy are not followed by the parent State and independent struggles persist, the right to secede may come into play. In other words, secession would not be perceived as an extension of self-determination, but as an autonomous title. In Chapter 2 this position is advanced in detail.40

### **1.3 Is international law giving some guidelines to secessionist processes?**

So far it was seen that contrary to what one may think of secession, i.e. that it is a one-spot event whereby a new entity is born out of a pre-existing one, secession is a dynamic process which finds its roots in the domestic arena and may, eventually, reach the international arena. Taking the definition given by Crawford "*secession is the process by which a particular group seeks to separate itself from the State to which it belongs, and to create a new State".41* It is precisely the interpretation of secession as a continuous process that is the point of departure of this study.

Pragmatically, secession is an internal issue up until the central government either accepts separation on the basis of domestic rules or manages to control the dialogue with the secessionist group. However, when the tensions between the parties are likely to put at risk the stability of the international system, in particular when there are serious violations of human rights, there is a growing trend in scholarly literature42 that maintains that international law may - in the vests of a "guardian", require the respect of a certain procedure. According to Tancredi, these rules can be collectively labelled the *due process for secession*, an emerging rather than an established set of international rules on State creation in cases of secession. The respect of procedural requirements, the argument continues, does not result in an international legal title to create a new subject of international law. The creation of state-

38 D. Raič, Statehood and the Law of Self-Determination, cit., p. 285.

39 See J. Chinn and S.D. Roper: *"Territorial Autonomy in Gagauz"*, Nationality Papers, vol. 26, n.1, 1998, p. 87.

40 A. Tancredi, La Secessione in Diritto Internazionale, Napoli, 2001, p. 24. 41 J. Crawford, The Creation of States in International Law, Cambridge, 1997, p. 85.

42 A. Tancredi, La Secessione in Diritto Internazionale, cit., p. 699, citing for a first elaboration of the procedural approach, *inter alia,* T. Franck*: "Communities in Transition: Autonomy, Self-Governance and Independence"*, Proceedings of the American Society of International Law 1993, p. 261.

hood will still be evaluated against the benchmark of effectiveness and statehood criteria. By contrast, when the set of rules forming the *due process* is not respected, there is, according to the model, an obligation not to recognize the entity born out of a process of secession. Being the due process a procedural legal institute, in case a newly born State does not comply with it, it will not be *non-existent*. Rather, that State will lie in isolation, unable to establish international relations with the other states.43 Chapter 2 will be particularly devoted to show that the *due process* combines the application of the following legal rules, (i) the ban on intervention by third parties (ii) the respect of the *uti possidetis iuris*, according to which the creation of a new State must occur within the previous existing administrative boundaries and (iii) the resort to territorial referenda.44 It will be seen that even the most recent cases of secession satisfy the *normative due process*, provided that the application of this model is not limited to cases of grave breaches of human rights, but expanded to attempts to secede occurring in states with well-established mechanisms for minority protection and freedom of expression.

#### **1.4 Secession and territorial referenda: a complex interplay**

In connection to the normative due process, it remains to be seen how the couple secession – territorial referendum may impact on territorial changes, i.e. if a sub-unit can lawfully secede 6by referendum. Arguably, the subject matter of the research leads to ask firstly how a referendum may impact on international law. Is it only a domestic tool? In the opening of this introduction we have argued that just like the double nature of secession, referenda on territorial changes seem to start acquiring a crucial position in international law. The analysis of the role of referendum in international law on territorial changes and its link to secession is not a new task for international legal research.45 In the second half of the nineties legal experts started to focus on whether " *the will to statehood has begun to develop into a prerequisite for statehood"*. 46 The analysis of referenda was inspired by the process of the dissolution of the USSR, by the events in the SFRY and by the examples of Eritrea or Kosovo. In the USSR, for instance, Georgia, Turkmenistan, Ukraine and Uzbekistan all resorted to territorial referenda to legitimate their choice of independence.

However, practice and scholars' positions are far from being clearly set. On the one side, as Cassese affirmed in 1995, referenda should be the way to be followed to

21

47 Cassese, Self-Determination of Peoples, cit., p. 191. 48 Supreme Court of Canada, *Reference Re Secession of Quebec,* cit., at p. 221 " *the continued existence and operation of the Canadian constitutional order could not be indifferent to a clear expression of a*

49 A. Peters: "*The Principle of Uti Possidetis Juris*", in C. Walter, Secession and Self-Determination in

50 A Peters: "*Sense and Nonsense of Territorial Referenda in Ukraine, and Why the 16 March Referendum in Crimea Does Not Justify Crimea's Alteration of Territorial Status under International Law*" published by the blog of the European Journal of International Law, http://www.ejiltalk.org/sense-andnonsense-of-territorial-referenda-in-ukraine-and-why-the-16-march-referendum-in-crimea-does-notjustify-crimeas-alteration-of-territorial-status-under-international-law/ (last visited 8 January 2015). 51 Badinter Commission, Opinion n. 4, reprinted in International Legal Materials, 1992, vol. 31, p. 1488 ff. See also S. Terrett, The Dissolution of Yugoslavia and the Badinter Commission, Aldershot, 2000.

*clear majority of Quebecers that they no longer wish to remain in Canada"*.

International Law, cit., p. 133.

give legality to territorial changes.47 It is not tantamount to say that territorial referenda affect substantially international law on territorial changes and confer to people a legal title to secede. Rather, it means that referenda might "procedurally intervene" in seceding processes as hinted at above. \Although practice does not allow to maintain that popular consent confers a legal title to secede, the wording of the Supreme Court of Canada in the *Re Reference Secession of Quebec* case that it cannot be ignored is still valid today.48 The intrinsic value of a referendum lies in its ability to give a shared answer to a question. A majoritarian vote may be analysed from different points of view in social sciences: from a legal point of view, for instance, in terms of compliance with the rule of law and established legal standards. Such a striking role under domestic law cannot be ignored by international law on territorial changes, in particular by the international legal order, where individuals and their

rights play a fundamental role in the progressive development of the law.

On the other side, according to Peters "*from a purely normative perspective, the best procedure for establishing a State boundary is a referendum conducted among the interested populations under international supervision".49* Peters goes beyond the principle of *uti possidetis juris* and its value under international law, arguing that a free and fair vote can serve as a legitimating factor in settling new boundaries. In Peters' view *uti possidetis* maintains an important role as a starting point for popular consent because any territorial referendum needs to rely on established borders. Furthermore, Peters has developed her approach by maintaining that "*as a matter of customary international law a free territorial referendum is emerging as a procedural condition sine qua non for territorial changes*".50 The Badinter Commission in its Opinion n.4 on Bosnia Herzegovina (B-H) seems to support this view when it states that " *the will of the peoples of B-H to constitute B-H as a sovereign and independent State cannot be held to have been fully established. This assessment could be reviewed if appropriate guarantees were provided by the republic applying for recognition, possibly by means of a referendum of all citizens of B-H without distinction, carried out under international supervision*".51 The preference for the tool referendum is justified, *inter alia*, by the fact that a referendum represents a peaceful but very powerful way for the secessionist group to confront with the parent State, in that it gives to the central government a clear expression of the will of a certain sub-

43 See for the latest considerations about the model A. Tancredi: "*Secessione e Diritto Internazionale: un'Analisi del Dibattito*", Diritto pubblico comparato ed europeo, 2015, n. 2, pp. 473-474

44 Although the present research will focus mainly on the resort to territorial referendum, intervention by third parties will be dwelled upon with in the last chapter in the context of international law about recognition.

45 T. D. Grant: "*A Panel of Experts for Chechnya: Purposes and Prospects in light of International Law*", Virginia Journal of International Law, 1991, n. 40, pp. 145-248; C. Hillgruber: "*The Admission of new States to the International Community*", European Journal of International Law, 1998, vol.9, pp. 491-520.

46 T. D. Grant: "*A Panel of Experts for Chechnya",* cit., p. 201.

give legality to territorial changes.47 It is not tantamount to say that territorial referenda affect substantially international law on territorial changes and confer to people a legal title to secede. Rather, it means that referenda might "procedurally intervene" in seceding processes as hinted at above. \Although practice does not allow to maintain that popular consent confers a legal title to secede, the wording of the Supreme Court of Canada in the *Re Reference Secession of Quebec* case that it cannot be ignored is still valid today.48 The intrinsic value of a referendum lies in its ability to give a shared answer to a question. A majoritarian vote may be analysed from different points of view in social sciences: from a legal point of view, for instance, in terms of compliance with the rule of law and established legal standards. Such a striking role under domestic law cannot be ignored by international law on territorial changes, in particular by the international legal order, where individuals and their rights play a fundamental role in the progressive development of the law.

On the other side, according to Peters "*from a purely normative perspective, the best procedure for establishing a State boundary is a referendum conducted among the interested populations under international supervision".49* Peters goes beyond the principle of *uti possidetis juris* and its value under international law, arguing that a free and fair vote can serve as a legitimating factor in settling new boundaries. In Peters' view *uti possidetis* maintains an important role as a starting point for popular consent because any territorial referendum needs to rely on established borders. Furthermore, Peters has developed her approach by maintaining that "*as a matter of customary international law a free territorial referendum is emerging as a procedural condition sine qua non for territorial changes*".50 The Badinter Commission in its Opinion n.4 on Bosnia Herzegovina (B-H) seems to support this view when it states that " *the will of the peoples of B-H to constitute B-H as a sovereign and independent State cannot be held to have been fully established. This assessment could be reviewed if appropriate guarantees were provided by the republic applying for recognition, possibly by means of a referendum of all citizens of B-H without distinction, carried out under international supervision*".51 The preference for the tool referendum is justified, *inter alia*, by the fact that a referendum represents a peaceful but very powerful way for the secessionist group to confront with the parent State, in that it gives to the central government a clear expression of the will of a certain sub-

hood will still be evaluated against the benchmark of effectiveness and statehood criteria. By contrast, when the set of rules forming the *due process* is not respected, there is, according to the model, an obligation not to recognize the entity born out of a process of secession. Being the due process a procedural legal institute, in case a newly born State does not comply with it, it will not be *non-existent*. Rather, that State will lie in isolation, unable to establish international relations with the other states.43 Chapter 2 will be particularly devoted to show that the *due process* combines the application of the following legal rules, (i) the ban on intervention by third parties (ii) the respect of the *uti possidetis iuris*, according to which the creation of a new State must occur within the previous existing administrative boundaries and (iii) the resort to territorial referenda.44 It will be seen that even the most recent cases of secession satisfy the *normative due process*, provided that the application of this model is not limited to cases of grave breaches of human rights, but expanded to attempts to secede occurring in states with well-established mechanisms for minority

In connection to the normative due process, it remains to be seen how the couple secession – territorial referendum may impact on territorial changes, i.e. if a sub-unit can lawfully secede 6by referendum. Arguably, the subject matter of the research leads to ask firstly how a referendum may impact on international law. Is it only a domestic tool? In the opening of this introduction we have argued that just like the double nature of secession, referenda on territorial changes seem to start acquiring a crucial position in international law. The analysis of the role of referendum in international law on territorial changes and its link to secession is not a new task for international legal research.45 In the second half of the nineties legal experts started to focus on whether " *the will to statehood has begun to develop into a prerequisite for*

tion of the USSR, by the events in the SFRY and by the examples of Eritrea or Kosovo. In the USSR, for instance, Georgia, Turkmenistan, Ukraine and Uzbekistan all

However, practice and scholars' positions are far from being clearly set. On the one side, as Cassese affirmed in 1995, referenda should be the way to be followed to

43 See for the latest considerations about the model A. Tancredi: "*Secessione e Diritto Internazionale:*

44 Although the present research will focus mainly on the resort to territorial referendum, intervention by third parties will be dwelled upon with in the last chapter in the context of international law about

45 T. D. Grant: "*A Panel of Experts for Chechnya: Purposes and Prospects in light of International Law*", Virginia Journal of International Law, 1991, n. 40, pp. 145-248; C. Hillgruber: "*The Admission of new States to the International Community*", European Journal of International Law, 1998, vol.9, pp.

resorted to territorial referenda to legitimate their choice of independence.

*un'Analisi del Dibattito*", Diritto pubblico comparato ed europeo, 2015, n. 2, pp. 473-474

46 T. D. Grant: "*A Panel of Experts for Chechnya",* cit., p. 201.

46 The analysis of referenda was inspired by the process of the dissolu-

protection and freedom of expression.

*statehood"*.

recognition.

491-520.

**1.4 Secession and territorial referenda: a complex interplay**

47 Cassese, Self-Determination of Peoples, cit., p. 191. 48 Supreme Court of Canada, *Reference Re Secession of Quebec,* cit., at p. 221 " *the continued existence and operation of the Canadian constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada"*.

49 A. Peters: "*The Principle of Uti Possidetis Juris*", in C. Walter, Secession and Self-Determination in International Law, cit., p. 133.

50 A Peters: "*Sense and Nonsense of Territorial Referenda in Ukraine, and Why the 16 March Referendum in Crimea Does Not Justify Crimea's Alteration of Territorial Status under International Law*" published by the blog of the European Journal of International Law, http://www.ejiltalk.org/sense-andnonsense-of-territorial-referenda-in-ukraine-and-why-the-16-march-referendum-in-crimea-does-notjustify-crimeas-alteration-of-territorial-status-under-international-law/ (last visited 8 January 2015).

51 Badinter Commission, Opinion n. 4, reprinted in International Legal Materials, 1992, vol. 31, p. 1488 ff. See also S. Terrett, The Dissolution of Yugoslavia and the Badinter Commission, Aldershot, 2000.

national unit. Along this line of thought, the study will underline the possible links between referenda and negotiations involving the seceding unit, the parent State and all the interest stakeholders.

# **2. Methodology and Structure**

The study follows the traditional pattern of selection and interpretation of (i) legal acts (ii) practice and (iii) scholarly literature. However, a typical feature of the research is its cross-cutting nature. Since the field of territorial changes and secession lies at the intersection between national and international legal orders, constitutional practice and comparative constitutional analysis is all the more relevant to find principles of law. Hence, the thesis relies on materials from a varied assortment of sources, ranging from international legal instruments and case-law– including the ICJ, Human Rights' Bodies and domestic courts chosen on the basis of their relevance to the subject matter of the research- to states' declarations and doctrine.52

# **2.1 Methodology**

The thesis follows an empirical approach and looks at the various instances of the interrelation between secession and referendum in international law. Since we shall analyse the existence of a process for creation of statehood characterised by secession and referendum, cases study lie at the core of this work. With more than 300 sovereignty and territorial referenda held since the eighteen century, a selection is unavoidable. The examples analysed in the following pages are Quebec, Montenegro, Scotland, Crimea and Catalonia, albeit other situations such as that of the region of Karakalpakstan within Uzbekistan, Kosovo, Abkhazia and Ossetia, will be concisely analysed as well. In particular, the complexity of the case of Crimea justifies its analysis at three different stages: (i) when dealing with secession, (ii) with the analysis of referendum in international law on territorial changes and (iii) with recognition of an entity born out of a seceding referendum. The selection made can be motivated on several grounds: for Scotland, Crimea and Catalonia, they are the most recent examples and quite similar in timing, thus the road to find elements for the consolidation of an international rule necessarily has to involve their inquiry. Secondly, the case of Quebec is so far the only one in which a domestic Court clearly discussed the use of a referendum to secede and with regulation of this process in

23

*Chapter 4* follows the main inquiry and focuses on the procedural requirements for a free and fair territorial referendum. Always adopting an empirical approach, Mon-

international law. By the same token, Montenegro has reached independence throughout a referendum with a high involvement of the international community. In the main cases study, secession originates in the context of a democratic system pursuant to which freedom of expression and minority protection are ensured. This element is important in light of the legal justifications adduced by sub-units vis-à-vis the parent State, be those secession as a remedy to serious injustices, the exercise of their right to self-determination or the expression of a right to decide on their status. Throughout an inquiry about the legal soundness of each argument, the research will explore the relationship between secession and referendum and more generally the

The inquiry begins from the right to self-determination and its current status under international law. *Chapter 1* explores the boundaries of the right to selfdetermination with special emphasis to the evolution of the understanding of the right. From a right belonging to colonies, substantially equated to independence, the right to self-determination can be also exercised within the borders of the parent State. In this second dimension, the exercise of the right to self-determination has been progressively linked to concepts of democratic statehood and the rule of law. *Chapter 2* discusses the approach of international law towards secession, with a particular focus on the procedural requirements for carrying out a secession, that may be in the way of consolidation at the international level. The Chapter can be subdivided into two parts: the first one covers the normative framework for secession, with a critique to the remedial secession theory and the rational underpinning the support for the application of a *normative due process*. The second one presents an attempt to disentangle secession from self-determination, arguing that secession is not a particular form of the exercise of the right to self-determination. In other words, the Chapter adopts the *normative due process* referred to above vis-à-vis the

*Chapter 3*, then, goes to the core of the inquiry. When it is affirmed that there is a trend in consolidation in international law about the use of the referendum to redraw the borders of states, one of the most common arguments is that popular consultations about territorial changes are quite an old practice, beginning from the plebiscites hold after the French Revolution. Recalling that the main question is whether referenda legitimate per se a secession and whether there is a procedural obligation to resort to referenda, *Chapter 3* begins from the analysis of the plebiscites carried out after the World War I. If plebiscites can be considered the ancestors of territorial referenda, then it could be even argued that there is sufficient practice and *opinio juris* establishing referenda as the legitimating tool to carry out a secession. In the Chapter, the main differences between plebiscites and referenda are listed. Then, throughout the cases of Quebec, Scotland, Karakalpakstan, Catalonia and Crimea, the contours of the legal status of referenda in international law on territori-

role of popular consultations in international law on territorial changes.

**2.2 Structure**

exercise of an autonomous right to secede.

al changes are defined.

52 Among the sources, those references which may have been useful to develop the main argument, but that were mentioned either briefly in the core text or just in the footnotes, are not included in the bibliography. An example are the resolutions of the United Nations pertaining to the violation of art. 2(4) of the UN Charter within the framework of the decolonization, such as in the case of Timor or West New Guinea. This choice is mandated by the high interdisciplinary nature of the research which requires the researcher to circumscribe the area of study. In this sense, some issues, i.e. the possible critiques that could be advanced against the referendum, in particular the fact that its widespread use could amount to the domination of the majority against the minority within a State, will not be studied as they are worthy of a thorough analysis that is left to other publications.

international law. By the same token, Montenegro has reached independence throughout a referendum with a high involvement of the international community. In the main cases study, secession originates in the context of a democratic system pursuant to which freedom of expression and minority protection are ensured. This element is important in light of the legal justifications adduced by sub-units vis-à-vis the parent State, be those secession as a remedy to serious injustices, the exercise of their right to self-determination or the expression of a right to decide on their status. Throughout an inquiry about the legal soundness of each argument, the research will explore the relationship between secession and referendum and more generally the role of popular consultations in international law on territorial changes.

#### **2.2 Structure**

national unit. Along this line of thought, the study will underline the possible links between referenda and negotiations involving the seceding unit, the parent State and

The study follows the traditional pattern of selection and interpretation of (i) legal acts (ii) practice and (iii) scholarly literature. However, a typical feature of the research is its cross-cutting nature. Since the field of territorial changes and secession lies at the intersection between national and international legal orders, constitutional practice and comparative constitutional analysis is all the more relevant to find principles of law. Hence, the thesis relies on materials from a varied assortment of sources, ranging from international legal instruments and case-law– including the ICJ, Human Rights' Bodies and domestic courts chosen on the basis of their relevance to the subject matter of the research- to states' declarations and doctrine.52

The thesis follows an empirical approach and looks at the various instances of the interrelation between secession and referendum in international law. Since we shall analyse the existence of a process for creation of statehood characterised by secession and referendum, cases study lie at the core of this work. With more than 300 sovereignty and territorial referenda held since the eighteen century, a selection is unavoidable. The examples analysed in the following pages are Quebec, Montenegro, Scotland, Crimea and Catalonia, albeit other situations such as that of the region of Karakalpakstan within Uzbekistan, Kosovo, Abkhazia and Ossetia, will be concisely analysed as well. In particular, the complexity of the case of Crimea justifies its analysis at three different stages: (i) when dealing with secession, (ii) with the analysis of referendum in international law on territorial changes and (iii) with recognition of an entity born out of a seceding referendum. The selection made can be motivated on several grounds: for Scotland, Crimea and Catalonia, they are the most recent examples and quite similar in timing, thus the road to find elements for the consolidation of an international rule necessarily has to involve their inquiry. Secondly, the case of Quebec is so far the only one in which a domestic Court clearly discussed the use of a referendum to secede and with regulation of this process in

52 Among the sources, those references which may have been useful to develop the main argument, but that were mentioned either briefly in the core text or just in the footnotes, are not included in the bibliography. An example are the resolutions of the United Nations pertaining to the violation of art. 2(4) of the UN Charter within the framework of the decolonization, such as in the case of Timor or West New Guinea. This choice is mandated by the high interdisciplinary nature of the research which requires the researcher to circumscribe the area of study. In this sense, some issues, i.e. the possible critiques that could be advanced against the referendum, in particular the fact that its widespread use could amount to the domination of the majority against the minority within a State, will not be studied as they are worthy

of a thorough analysis that is left to other publications.

all the interest stakeholders.

**2.1 Methodology**

**2. Methodology and Structure**

The inquiry begins from the right to self-determination and its current status under international law. *Chapter 1* explores the boundaries of the right to selfdetermination with special emphasis to the evolution of the understanding of the right. From a right belonging to colonies, substantially equated to independence, the right to self-determination can be also exercised within the borders of the parent State. In this second dimension, the exercise of the right to self-determination has been progressively linked to concepts of democratic statehood and the rule of law.

*Chapter 2* discusses the approach of international law towards secession, with a particular focus on the procedural requirements for carrying out a secession, that may be in the way of consolidation at the international level. The Chapter can be subdivided into two parts: the first one covers the normative framework for secession, with a critique to the remedial secession theory and the rational underpinning the support for the application of a *normative due process*. The second one presents an attempt to disentangle secession from self-determination, arguing that secession is not a particular form of the exercise of the right to self-determination. In other words, the Chapter adopts the *normative due process* referred to above vis-à-vis the exercise of an autonomous right to secede.

*Chapter 3*, then, goes to the core of the inquiry. When it is affirmed that there is a trend in consolidation in international law about the use of the referendum to redraw the borders of states, one of the most common arguments is that popular consultations about territorial changes are quite an old practice, beginning from the plebiscites hold after the French Revolution. Recalling that the main question is whether referenda legitimate per se a secession and whether there is a procedural obligation to resort to referenda, *Chapter 3* begins from the analysis of the plebiscites carried out after the World War I. If plebiscites can be considered the ancestors of territorial referenda, then it could be even argued that there is sufficient practice and *opinio juris* establishing referenda as the legitimating tool to carry out a secession. In the Chapter, the main differences between plebiscites and referenda are listed. Then, throughout the cases of Quebec, Scotland, Karakalpakstan, Catalonia and Crimea, the contours of the legal status of referenda in international law on territorial changes are defined.

*Chapter 4* follows the main inquiry and focuses on the procedural requirements for a free and fair territorial referendum. Always adopting an empirical approach, Mon-

tenegro together with Crimea serve as the cases study for discerning the internationally consolidated standards for the conduct of a territorial referendum. In so doing, special attention is devoted to the practice of the Council of Europe in light of its role in the field of democracy through the rule of law. Once the procedural requirements have been established, attention is paid to what happens following a referendum about secession, notably to the reactions by the international community and more in general to the law on the recognition of statehood. In this part, other cases study such as Abkhazia, Ossetia, together with some remarks about Catalonia will be presented to the extent relevant for the subject matter of the Chapter.

*Chapter 4* will lead to the general *Conclusions* to the research, in which one and each piece of the puzzle collected in the previous chapters will be put together. The author hopes that, through the following investigation, the research can contribute to the development of a systematic approach and, in some small part, to the shedding of light on the controversial international law questions on territorial changes and the use of tools for the expression of the will of the people.

25

54 See A. Cassese, Self-Determination of Peoples. A Legal Reappraisal, cit., p. 53.

53 The distinction between internal and external self-determination has been often criticised. Weller for example argues that it is a questionable distinction whose effect is complicating the interpretation of the right. By splitting the concept into two parts, one could even come to the conclusion that selfdetermination is not a continuous right that is applicable to circumstances concerning both the identity and the governance of a State. See M. Weller, Escaping the Self-Determination Trap, Cambridge, 2008,

**Only a colonial peoples' right? Trajectories of self-determination**

The present Chapter explores the historical evolution of the right to selfdetermination and its contemporary legal status under international law. Firstly, the topic will be introduced by describing the historical origins of self-determination that can be traced back to the American and French revolution. It will be shown how self-determination was affirmed as a political principle and eventually evolved into a legal right. Then, the Chapter will analyse the general features of the right to selfdetermination focusing in particular on the most controversial issues arising from its

The assumption guiding the inquiry is that international law acknowledges the existence of two dimensions of the right to self-determination, internal and external.53 The former is generally defined as the right of all peoples "*to exercise those rights and freedoms which permit the expression of the popular will*".54 External selfdetermination, by contrast, was firstly conceived as leading to independence, due to its ties to the decolonization period. However, the external dimension has never been clearly defined because its enforcement clashes with the territorial *status quo* of the

Self-determination involves not only peoples and States but also other actors – e.g. international, regional courts - as well as international organizations. It can thus be analysed from a variety of perspectives. The point of view chosen for the present analysis is the double dimension of self-determination in international law. Referring to a double dimension of the right to self-determination is not tantamount to claim that there are two kinds of self-determination. International law acknowledges one right to self-determination. However, this right can be enforced in two directions, on the one hand towards the management of internal affairs and on the other hand externally towards creation of statehood. Pragmatically, it is the latter direction

**Chapter 1**

enforcement.

p.23.

international community.

**in International law**

# **Chapter 1 Only a colonial peoples' right? Trajectories of self-determination in International law**

The present Chapter explores the historical evolution of the right to selfdetermination and its contemporary legal status under international law. Firstly, the topic will be introduced by describing the historical origins of self-determination that can be traced back to the American and French revolution. It will be shown how self-determination was affirmed as a political principle and eventually evolved into a legal right. Then, the Chapter will analyse the general features of the right to selfdetermination focusing in particular on the most controversial issues arising from its enforcement.

The assumption guiding the inquiry is that international law acknowledges the existence of two dimensions of the right to self-determination, internal and external.53 The former is generally defined as the right of all peoples "*to exercise those rights and freedoms which permit the expression of the popular will*".54 External selfdetermination, by contrast, was firstly conceived as leading to independence, due to its ties to the decolonization period. However, the external dimension has never been clearly defined because its enforcement clashes with the territorial *status quo* of the international community.

Self-determination involves not only peoples and States but also other actors – e.g. international, regional courts - as well as international organizations. It can thus be analysed from a variety of perspectives. The point of view chosen for the present analysis is the double dimension of self-determination in international law. Referring to a double dimension of the right to self-determination is not tantamount to claim that there are two kinds of self-determination. International law acknowledges one right to self-determination. However, this right can be enforced in two directions, on the one hand towards the management of internal affairs and on the other hand externally towards creation of statehood. Pragmatically, it is the latter direction

24

tenegro together with Crimea serve as the cases study for discerning the internationally consolidated standards for the conduct of a territorial referendum. In so doing, special attention is devoted to the practice of the Council of Europe in light of its role in the field of democracy through the rule of law. Once the procedural requirements have been established, attention is paid to what happens following a referendum about secession, notably to the reactions by the international community and more in general to the law on the recognition of statehood. In this part, other cases study such as Abkhazia, Ossetia, together with some remarks about Catalonia will

*Chapter 4* will lead to the general *Conclusions* to the research, in which one and each piece of the puzzle collected in the previous chapters will be put together. The author hopes that, through the following investigation, the research can contribute to the development of a systematic approach and, in some small part, to the shedding of light on the controversial international law questions on territorial changes and

be presented to the extent relevant for the subject matter of the Chapter.

the use of tools for the expression of the will of the people.

53 The distinction between internal and external self-determination has been often criticised. Weller for example argues that it is a questionable distinction whose effect is complicating the interpretation of the right. By splitting the concept into two parts, one could even come to the conclusion that selfdetermination is not a continuous right that is applicable to circumstances concerning both the identity and the governance of a State. See M. Weller, Escaping the Self-Determination Trap, Cambridge, 2008, p.23.

54 See A. Cassese, Self-Determination of Peoples. A Legal Reappraisal, cit., p. 53.

that touches upon the desire of sub-national units to secede from the parent State and the one which may include the use of territorial referendum.55

# **1. From a Political Principle to a Legal Rule**

A reappraisal on the evolution of self-determination cannot but begin from the development of the Western political thought on the relationship between citizens and their sovereign. It was during the eighteenth century – with the American and French Revolution – that the idea of government based on an exchange of guarantees, i.e. consent to be governed for security guarantees, gained momentum. Despite the fact that the two revolutions were influenced by the age of the Enlightenment, thus they were mainly devoted to individualism and equal rights- the American and the French revolution set the roots for the affirmation of the principle of selfdetermination after World War I.

In this general framework, two notions lie at the basis of the principle of selfdetermination: peoples' sovereignty and ethnicity.56 The former was the driving force in the American and French revolution: gradually, populations started to oppose the authority and legitimacy of the central government that was considered *alien* from them. The Declaration of Independence of the United States of America dated 4 July 1776 reads as follows: "*whenever any form of government becomes destructive (…) it is the Right of the People to alter or abolish it, and to institute a new Government*".57 Accordingly, here popular sovereignty becomes the idea justifying the destruction of an existing central authority and its replacement by a new one. In broader terms, this line of reasoning opens the door for a role of the people in the making of the State. The other concept influencing self-determination is ethnicity.58 In fact, belonging to an ethnic group is one of the milestones in the path towards the making of a nation. The awareness of being part to the same community is in fact a constant feature of all self-determination claims. In the aftermath of the revolutions, then, liberalism and nationalism shaped the evolution of the principle of selfdetermination. Liberalism emphasizes the internal dimension of self-determination due to its demand for a representative government. Finally, nationalist ideology advocates for people's choice of their status in the international community and thus it supports the external dimension of self-determination.59

27

60 V.I. Lenin: "*The Right of Nations to Self-Determination*", in Lenin, Collected Works, Moscow, 1964,

62 T.W.Wilson: "*An Address to a Joint Session of Congress*", in A.S. Link (ed.), The Papers of Wood-

quoted by D. Raić, Statehood and the Law of Self-Determination, cit., p. 186. 61 A. Cassese, Self-Determination of Peoples. A Legal Reappraisal, cit., p. 16.

row Wilson, Princeton, 1984, p. 102.

**1.1 Self-determination after World War I**

determination first.

The first references to self-determination are to be found in Lenin and Wilson's political discourse. Although the perspectives of the two statesmen were inspired by different political ideologies, they still share some aspects and eventually merged into the notion of self-determination under international law. Therefore, this section will give a reappraisal of Lenin and Wilson's political thought about self-

Lenin's conception of self-determination interrelates with free access to economic resources: the ultimate ratio of self-determination is in fact the spread of socialist revolution. In this perspective, "*the interest of capitalist development and of the freedom of class struggle will be best served by secession in cases of subjugation by an oppressor*".60 According to Cassese, three major elements can be set out from Lenin's idea: first, ethnic and national groups can resort to self-determination to freely determine their own destiny. Secondly, self-determination should serve as a guiding principle for inter-States relations, e.g. by prohibiting territorial annexations carried out without, or contrary to the results of, popular consultations. Hence, it ultimately regulates territorial changes within the international community. Lastly, self-determination cannot but clash with imperialism because its application stems from the principle of freedom. Therefore, its enforcement allows for independence from external powers. This last element is of particular importance, because it will

From the aforementioned, it can be inferred that in Lenin's conception the external dimension of self-determination was predominant, although the rationale underpinning the principle rests internal, namely the right of people to freely determine their political status and have access to economic resources. The external dimension of self-determination was less present in Wilsons' political thought if compared to that of the soviet leader, or at least there was less trust in its real application. Wilson's perspective of self-determination found its roots in democratic political thought as developed during and after the American Revolution. For Wilson, self-determination was best realized through self-government because only a democratic form of government could give to a community the chance to administer itself while ensuring compliance with fundamental rights. The ultimate consequence of the implementa-

be reiterated by the USSR at the UN in the aftermath of World War II.61

tion of this idea would be a long-term peace for the international community.

On January 8, 1918 Wilson delivered a speech to a joint session of the US Congress62 in which he addressed the post war settlement: based on his idea of selfdetermination he claimed that nations should be established by well-defined communities living in a determined territory. Although self-determination was not mentioned during the speech, Wilson himself confirmed later in the so called Fourteen

55 This choice should not be misunderstood. It does not pretend to be the best approach to selfdetermination, nor a complete one. In the context of the present research, the legal analysis provided will be as detailed as it is needed to understand the following chapters.

56 For supporters of this view see. S. F. Van den Driest, Remedial Secession. A Right to External Self-Determination as a Remedy to Serious Injustices?, Cambridge, 2013, pp.14-17.

57 *Declaration of Independence of the United States*, 4 July 1976, quoted in J. Summers, Peoples and International Law: How Nationalism and Self-Determination Shape a Contemporary Law of Nations, Leiden-Boston, 2007, pp. 95-96.

58 S. Van den Driest, Remedial Secession. A Right to External Self-Determination as a Remedy to Serious Injustices?, cit., p. 16.

59 Ibid.

#### **1.1 Self-determination after World War I**

that touches upon the desire of sub-national units to secede from the parent State and

A reappraisal on the evolution of self-determination cannot but begin from the development of the Western political thought on the relationship between citizens and their sovereign. It was during the eighteenth century – with the American and French Revolution – that the idea of government based on an exchange of guarantees, i.e. consent to be governed for security guarantees, gained momentum. Despite the fact that the two revolutions were influenced by the age of the Enlightenment, thus they were mainly devoted to individualism and equal rights- the American and the French revolution set the roots for the affirmation of the principle of self-

In this general framework, two notions lie at the basis of the principle of selfdetermination: peoples' sovereignty and ethnicity.56 The former was the driving force in the American and French revolution: gradually, populations started to oppose the authority and legitimacy of the central government that was considered *alien* from them. The Declaration of Independence of the United States of America dated 4 July 1776 reads as follows: "*whenever any form of government becomes destructive (…) it is the Right of the People to alter or abolish it, and to institute a new Government*".57 Accordingly, here popular sovereignty becomes the idea justifying the destruction of an existing central authority and its replacement by a new one. In broader terms, this line of reasoning opens the door for a role of the people in the making of the State. The other concept influencing self-determination is ethnicity.58 In fact, belonging to an ethnic group is one of the milestones in the path towards the making of a nation. The awareness of being part to the same community is in fact a constant feature of all self-determination claims. In the aftermath of the revolutions, then, liberalism and nationalism shaped the evolution of the principle of selfdetermination. Liberalism emphasizes the internal dimension of self-determination due to its demand for a representative government. Finally, nationalist ideology advocates for people's choice of their status in the international community and thus it

55 This choice should not be misunderstood. It does not pretend to be the best approach to selfdetermination, nor a complete one. In the context of the present research, the legal analysis provided will

56 For supporters of this view see. S. F. Van den Driest, Remedial Secession. A Right to External Self-

57 *Declaration of Independence of the United States*, 4 July 1976, quoted in J. Summers, Peoples and International Law: How Nationalism and Self-Determination Shape a Contemporary Law of Nations,

58 S. Van den Driest, Remedial Secession. A Right to External Self-Determination as a Remedy to Seri-

the one which may include the use of territorial referendum.55

**1. From a Political Principle to a Legal Rule**

supports the external dimension of self-determination.59

be as detailed as it is needed to understand the following chapters.

Leiden-Boston, 2007, pp. 95-96.

ous Injustices?, cit., p. 16.

59 Ibid.

Determination as a Remedy to Serious Injustices?, Cambridge, 2013, pp.14-17.

determination after World War I.

The first references to self-determination are to be found in Lenin and Wilson's political discourse. Although the perspectives of the two statesmen were inspired by different political ideologies, they still share some aspects and eventually merged into the notion of self-determination under international law. Therefore, this section will give a reappraisal of Lenin and Wilson's political thought about selfdetermination first.

Lenin's conception of self-determination interrelates with free access to economic resources: the ultimate ratio of self-determination is in fact the spread of socialist revolution. In this perspective, "*the interest of capitalist development and of the freedom of class struggle will be best served by secession in cases of subjugation by an oppressor*".60 According to Cassese, three major elements can be set out from Lenin's idea: first, ethnic and national groups can resort to self-determination to freely determine their own destiny. Secondly, self-determination should serve as a guiding principle for inter-States relations, e.g. by prohibiting territorial annexations carried out without, or contrary to the results of, popular consultations. Hence, it ultimately regulates territorial changes within the international community. Lastly, self-determination cannot but clash with imperialism because its application stems from the principle of freedom. Therefore, its enforcement allows for independence from external powers. This last element is of particular importance, because it will be reiterated by the USSR at the UN in the aftermath of World War II.61

From the aforementioned, it can be inferred that in Lenin's conception the external dimension of self-determination was predominant, although the rationale underpinning the principle rests internal, namely the right of people to freely determine their political status and have access to economic resources. The external dimension of self-determination was less present in Wilsons' political thought if compared to that of the soviet leader, or at least there was less trust in its real application. Wilson's perspective of self-determination found its roots in democratic political thought as developed during and after the American Revolution. For Wilson, self-determination was best realized through self-government because only a democratic form of government could give to a community the chance to administer itself while ensuring compliance with fundamental rights. The ultimate consequence of the implementation of this idea would be a long-term peace for the international community.

On January 8, 1918 Wilson delivered a speech to a joint session of the US Congress62 in which he addressed the post war settlement: based on his idea of selfdetermination he claimed that nations should be established by well-defined communities living in a determined territory. Although self-determination was not mentioned during the speech, Wilson himself confirmed later in the so called Fourteen

60 V.I. Lenin: "*The Right of Nations to Self-Determination*", in Lenin, Collected Works, Moscow, 1964, quoted by D. Raić, Statehood and the Law of Self-Determination, cit., p. 186.

61 A. Cassese, Self-Determination of Peoples. A Legal Reappraisal, cit., p. 16.

62 T.W.Wilson: "*An Address to a Joint Session of Congress*", in A.S. Link (ed.), The Papers of Woodrow Wilson, Princeton, 1984, p. 102.

Points Address to the Congress that self-determination in his view was not an empty word but "*an imperative principle of action".*63 The notion of self-determination had an international dimension, to say that it was supposed to apply at the international level, while surprisingly there is no mention of the manner in which it could apply in the USA. It seems as if Wilson wanted to convey the idea that self-determination was nothing more than a political principle, highly dependent on the post-war situation in Europe. In other words, self-determination in Wilson's words was not yet a principle under international law: it was a political principle to manage international relations. This is confirmed by the fact that self-determination was defined in vague terms: whilst the principle could be applied to the claims of specific ethnic groups, no clarification was really given as to who was entitled to take advantage of it – e.g. only ethnic sub-national units, or even small communities or groups. Moreover, there was no reference to the existence of corresponding duties owed by other States, be they the Allies or the defeated powers.