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Remedial Secession: Emerging Right or Hollow Rhetoric?

Mckenna, Miriam LU (2010)
Abstract
It is generally accepted in international legal scholarship that the right of self-determination is limited by the principle of territorial integrity of states. However, many scholars suggest that an inverted reading of this principle in the Friendly Relations Declaration suggests that a state may not avail itself of the principle of territorial integrity if it does not possess a government representing the whole people belonging to its territory on a basis of equality and without discrimination. This notion is deemed ‘remedial secession’. However, it is presently unclear whether remedial secession forms a valid legal entitlement in international law. Therefore, the primary objective of the thesis is to consider whether remedial secession,... (More)
It is generally accepted in international legal scholarship that the right of self-determination is limited by the principle of territorial integrity of states. However, many scholars suggest that an inverted reading of this principle in the Friendly Relations Declaration suggests that a state may not avail itself of the principle of territorial integrity if it does not possess a government representing the whole people belonging to its territory on a basis of equality and without discrimination. This notion is deemed ‘remedial secession’. However, it is presently unclear whether remedial secession forms a valid legal entitlement in international law. Therefore, the primary objective of the thesis is to consider whether remedial secession, as an aspect of the international law of self-determination, has a valid legal basis in public international law.

In order to answer this question, this thesis conducts a juxtaposition of theory and practice: an inquiry into the legal theory on secession and an analysis of state practice. It elaborates the legal theoretical framework through which remedial secession is understood, analysing the notion of remedial secession within the scope and content of self-determination in light of territorial integrity, before considering a number of international legal sources to observe that remedial secession enjoys support in judicial writings and even some limited support in jurisprudence.

The thesis then examines the cases of Bangladesh, Croatia and Biafra to observe whether remedial secession is supported in the practice of states. Based on an analysis of these cases, it is concluded that while the successful secessions of Bangladesh and Croatia can be said to conform to the suggested criteria of remedial secession, it is unclear whether they provide evidence of a customary legal right of remedial secession.

In the final part, the recent secession of Kosovo is analysed to understand whether it has any crystallising or precedential value for a possible customary rule. The ICJ's Advisory Opinion on Kosovo together with reaction of the international community are closely scrutinised, leading to the conclusion that the international community missed a rare opportunity to clarify the concept of remedial secession and to reassert its preventive force as a non-traditional human rights protection mechanism. (Less)
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author
organization
publishing date
type
Thesis
publication status
published
subject
keywords
Public international law, Folkrätt
pages
102 pages
language
English
LU publication?
yes
id
dcb487ca-6e0b-410a-a24f-cc8fc868fdf3
date added to LUP
2017-07-31 09:40:44
date last changed
2018-05-29 09:31:50
@misc{dcb487ca-6e0b-410a-a24f-cc8fc868fdf3,
  abstract     = {It is generally accepted in international legal scholarship that the right of self-determination is limited by the principle of territorial integrity of states. However, many scholars suggest that an inverted reading of this principle in the Friendly Relations Declaration suggests that a state may not avail itself of the principle of territorial integrity if it does not possess a government representing the whole people belonging to its territory on a basis of equality and without discrimination. This notion is deemed ‘remedial secession’. However, it is presently unclear whether remedial secession forms a valid legal entitlement in international law. Therefore, the primary objective of the thesis is to consider whether remedial secession, as an aspect of the international law of self-determination, has a valid legal basis in public international law. <br/><br/>In order to answer this question, this thesis conducts a juxtaposition of theory and practice: an inquiry into the legal theory on secession and an analysis of state practice. It elaborates the legal theoretical framework through which remedial secession is understood, analysing the notion of remedial secession within the scope and content of self-determination in light of territorial integrity, before considering a number of international legal sources to observe that remedial secession enjoys support in judicial writings and even some limited support in jurisprudence.<br/><br/>The thesis then examines the cases of Bangladesh, Croatia and Biafra to observe whether remedial secession is supported in the practice of states. Based on an analysis of these cases, it is concluded that while the successful secessions of Bangladesh and Croatia can be said to conform to the suggested criteria of remedial secession, it is unclear whether they provide evidence of a customary legal right of remedial secession. <br/><br/>In the final part, the recent secession of Kosovo is analysed to understand whether it has any crystallising or precedential value for a possible customary rule. The ICJ's Advisory Opinion on Kosovo together with reaction of the international community are closely scrutinised, leading to the conclusion that the international community missed a rare opportunity to clarify the concept of remedial secession and to reassert its preventive force as a non-traditional human rights protection mechanism.},
  author       = {Mckenna, Miriam},
  keyword      = {Public international law,Folkrätt},
  language     = {eng},
  pages        = {102},
  title        = {Remedial Secession: Emerging Right or Hollow Rhetoric?},
  year         = {2010},
}