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Description
In 2008 Kosovo declared independence, which was recognised by the majority of the UN Members (52%), in 2014 Crimeans orchestrated an independence referendum and soon after were incorporated into the Russian Federation, in 2017 Catalonia conducted an independence referendum and promulgated independence. Furthermore, a number of secessionist claims exacerbated in Europe and around the globe (Gagauzia, Scotland, Kashmir, Kurdistan) which are likely to re-seek statehood in the near future. Against that background, two paramount questions have arisen: whether international law provides an entitlement to statehood; and if so, what are the conditions and, on the other hand, whether international law disposes of instruments which can prevent secession and what they are. The first question has been relatively well addressed by the doctrine: self-determination could lead to the territorial disruption of existing states only in extreme instances of oppression or colonisation. On the contrary, the second question apart from situations such as the prohibition on the use of force or the prohibition on racial discrimination remains quite undetermined. In particular, it is not clear whether secession may be prevented if the local population is offered sufficient safeguards to pursue its political, social and cultural development. This research will endeavour to analyse this problem in-depth and answer to what extent can the realisation of the internal right to self-determination be construed as an international law norm which prevents secession. To this end, the application of the norm by States and international organisations as well as its invocation by domestic courts and tribunals will be taken into account. An important aspect of the project is the scrutiny of the content of the internal self-determination norm and the determination of a threshold which would on the one hand allow secession whereas on the other, proscribe it.
Summary of project results
The project ‘Methods of Prevention of Secession in International Law: The Problem of Internal Self-Determination’, realized at the Institute of Law Studies of the Polish Academy of Sciences between 1 of June 2021 and 31 of July 2023, constitutes and attempt to reassess the matter of legal indifference of secession. Dr Jankovic has presented theoretical and practical aspects of internal self-determination as being an in statu nascendi norm, which prohibits secession in normal occurrences, that is, beyond the established neutrality-exception rules, where secession is either prohibited (external use of force) or permitted (alien subjugation).
In evaluating its hypothesis of prohibiting secession by dint of internal self-determination, the project relied predominantly on the practice of states and international organizations, including courts and para-judicial bodies. Besides, the opinion of commentators was consulted as well as the voices of the local population in multi-ethnic European states were considered through the conduct of in-depth interviews. Such a people-oriented approach broadens the orthodox method of the norm-creation process in international law, and constitutes a true recourse to a democratic basis, especially relevant in secessionist scenarios.
The beneficiaries of the project are both the science of international law, which for now has lacked a clear stance on secession (beyond the established exceptions) and the international community as a whole, which will receive legal guidance on how secessionist conflicts could be mitigated and resolved. Indisputably, the project proffers only possible foundations for further institutional action, offering a viable legal mechanism to this end based on its value and incremental practice, but it remains to be determined what exactly is meant by internal self-determination and which threshold of its (non)realization should be applicable in deciding secession cases. Nonetheless, there are chances that internal self-determination will transpire as an equitable norm, capable of accommodating ethnic-historical and economic narratives, which would be a win-win solution, securing international peace and stability.