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Self-determination at the time of Brexit:
the law and politics behind break-away movements in Europe
By Jelena von Helldorff
“What we demand in this war, therefore, is nothing peculiar to ourselves. It is that the world be made
fit and safe to live in; and particularly that it be made safe for every peace-loving nation which, like
our own, wishes to live its own life, determine its own institutions, be assured of justice and fair
dealing by the other peoples of the world as against force and selfish aggression”.
Woodrow Wilson, 8 January 1918
Introduction
When in January 1918 President Woodrow Wilson set down 14 points as a blueprint for world
peace, proclaiming the right to self-determination of peoples as one of the fundamental principles
of the post war order, he couldn’t possibly have predicted that his words would still resonate in
the XXI century. Back then the old world order was crumbling: the Ottoman Empire, the multinational Austro Hungarian monarchy and the Russian empire were all dissolved by the end of the
First World War giving way to a number of new states. The idea of national awakening and
nation building started to take hold. Even in the modern, globalized world defined by rapid
transport and communications in which national boundaries appear to have lost their meaning the
right of peoples to decide their own destiny continues to stoke passions. A sense of history,
common language, distinctive cultural traditions and a feeling of “self” invigorate claims for
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more autonomy and independence of peoples, calling into question the primacy of the nation
state as the supreme form of social organisation. Much as the European Union tried to create a
supra national construction as a community of free and equal citizens’ it couldn’t erase the sense
of national belonging and aspirations to independence.
The international legal framework
The right to self -determination is provided for in the Charter of the United Nations and the two
UN human rights covenants of 1966 (International covenant on Civil and Political Rights and the
International covenant on Economic, Social and Cultural Rights). Art. 1 of the Charter stipulates
that the purpose of the UN is to “develop friendly relations among nations based on respect for
the principle of equal rights and self- determination of peoples, and to take other appropriate
measures to strengthen universal peace”. However, whereas these principles clearly applied to
former colonies as well as to trust territories the principle of self- determination of regions or
national minorities in the post -colonial order are far from being unanimously agreed upon either
by international law or international courts’ practice. The issue of secession of states thus
remains complicated from the legal point of view, making room for political meddling and
interpretations. As stated by the Judge Simma in respect to Kosovo’s unilateral declaration of
independence “The neutrality of international law on a certain point simply suggest that there are
areas where international law has not yet come to regulate, or indeed, will never come to
regulate”1 This means that each case is to be considered separately.
Nonetheless, despite legal uncertainty governing the field of secession and self- determination
there are international laws and regulations governing secession, territorial integrity and
sovereignty of states. With citizens’ disenchantment, dissatisfaction and rejection of traditional
political parties triggered by the rise of nationalism as a reaction to globalisation, there is a
growing need for more clarity on the rights and obligations of peoples who wish to be in
command of their destiny.
In this regard, it is worth listing a few recognized international law principles constituting the
basis for statehood:
1. Montevideo Convention
According to the Rights and Duties of States encompassed in the Montevideo Convention
adopted in 1933: “The State as a person of international law should possess the following
qualifications: a) permanent population b) a defined territory c) government and d) capacity to
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Accordance with International Law of the Unilateral declaration of Independence in respect of Kosovo, Advisory
Opinion, 22 July 2010, International Court of Justice reports 2010, p. 403
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enter into relations with other states2. The above mentioned principles of statehood have been
accepted as the “normative starting point on State recognition, not only by legal scholars and
lawyers but also, most importantly, by States”3 In this regard, an entity becomes a State once it
meets the requirements of statehood set out in the Montevideo Convention of 1933- that is a
permanent population, a defined territory, a Government and a capacity to enter into relations
with other states.4
2. Prohibition on the use of force
Any secession of a part of the state or region accomplished by the use of force is considered
illegal in international law (The pact of Paris, Kellogg-Briand Pact). This principle was evoked
by the United Nations refusal with regard to the part of Cyprus established following Turkish
occupation. The same has been the case regarding the Russian annexation of Crimea.
3. Territorial integrity
Because State is central to international legal order international law protects the territorial
integrity of a State. Not only the UN Charter but a number of other international instruments
recognize the State sovereignty over its territory based on the general principle of customary law
(uti possidetis). The same is true for the Helsinki Accords from 1975 which require participating
states” to respect the territorial integrity of each of the participating States and to refrain from
actions against the territorial integrity in particular from any action constituting a threat or use of
force” 5However, this principle contradicts the right of secession as territorial integrity and the
right to secession collide with each other. Opponents of independence movements often evoke
this principle in support to their argument of illegality of separatist claims6. When applied to a
concrete case, it is clear that a balance of these two competing principles must be struck, as there
is no hierarchical order which would confer legal supremacy to either of them.
Beyond the above mentioned legal framework (jus cogens) , in order to obtain international legal
personality a state needs to be recognized by the international community. An important factor
in determining the success of the secession of an entity departing from a parent state is the
admission to the United Nations. With the end of colonial rule the UN recognition of the right of
self- determination has been invoked in support of the de-decolonization of non self -governing
territories. The process was relatively easy as the right to independence has been enshrined in the
UN Charter. As a result, membership of the United Nations has been expanded from 51 in 1945
2
Montevideo Convention of 1933 on the Rights and Duties of States http://www.cfr.org/sovereignty/montevideoconvention-rights-duties-states/p15897
3
The Secession of States and their recognition in the wake of Kosovo by John Dugard in Collected Courses of the
Hague Academy of International Law, page 31, footnote 27
4
Idem page 47
5
http://www.osce.org/mc/39501?download=true
6
This argument has been brought forward by Serbia in case of Kosovo self -declared independence. Also Article 2
of the Spanish Constitution provides “The Constitution is based on the indissoluble unity of Spanish nation, the
common and indivisible homeland of all Spaniards”
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to its present membership of 193. The dissolution of the Soviet Union, Yugoslavia and
Czechoslovakia added a few additional new members.
What poses a particularly delicate challenge is the Secession in the post-colonial world..
Contemporary international law doesn’t contest the right of self-determination beyond the
colonial context, but remains ambiguous about modalities of implementation. A number of legal
documents provide evidence in support of self- determination - the 1966 International
Covenants, the Helsinki Accords, the Charter of Paris, the EC Guidelines on the Recognition of
New States in Eastern Europe and the Soviet Union, the Vienna Declaration on Human Rights,
the EU Declaration on Yugoslavia, the Advice of the Badinter Commission, the Canadian
Supreme Court Decision in the Secession of Quebec. 7 The Declaration and Programme of
Action of the 1993 Vienna Conference on Human Rights went further, treating selfdetermination as a human right “All peoples have the right of self-determination. By virtue of
that right they freely determine their political status, and freely pursue their economic, social and
cultural development. In this regard the denial of self-determination is a violation of human
rights”8 However, whereas no rule prohibit unilateral declaration of independence, no rules
explicitly permit secession. If self-determination has been accepted as a peremptory norm of
contemporary legal order opinions are divided on how to balance self-determination with the
equally valid principle of territorial sovereignty. During the emancipation of colonies it was
relatively easy, as the question of territorial integrity was not at stake. “This meant the right of
self-determination was to result in the independence of colonial countries, but was not to affect
the territorial integrity of established and newly independent states. “9 After the International
Rights Covenants came into force the situation changed. Although the United Nation Charter, the
International Human Rights Covenants and other instruments dealing with self-determination
draw no distinction between external and internal self-determination this distinction became a
fundamental feature of the right of self -determination10. That means the guaranteed right of the
population of peoples within an independent state to choose the government of this state and to
be governed by and to participate in a government that represents the whole people of the
territory and which confers equal rights on all persons and respects and protects human rights11
The problem arises when it comes to define who is the population or peoples. Does a national
minority enjoy the right of self-determination? Although there is no clear definition of national
minority according to the international legal standards a minority means a group smaller in
number than the rest of population with its own distinctive culture, traditions, language or
religion.12 But neither international law nor the ICJ jurisprudence clearly delimit the rights of
7
Dugard, page 83
idem, page 79
9
Idem, page 80
10
Idem page 86
11
Rosalyn Higgins, Problems and Process: International Law and how we use it, pp. 119-120
12
F. Capotorti, Study of the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, 1979 UN
Sales, N° E 91, XIV 2
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autonomy and self – governments, leaving a plenty of room for interpretation. 13 However, in
cases of state denial of the right to internal self-determination, discrimination amounting to
oppression and domination or grave violation of human rights the international community does
reserve the right to the so called “external self-determination” Yet, the “external selfdetermination” in the form of unilateral secession should be only exercised as a measure of last
resort, after all democratic principles, including negotiation and other political and legal
instruments have failed. Undeniably, the complexity of the issue of self-determination combined
with legal uncertainty provide plenty of room for political considerations. In the words of
Christian Tomuschat “The issues of recognition (of State) are not legal issues, but are inherently
tainted by considerations of power politics”14
The attitude of the European Union towards secession
European Union has not been set up in a legal vacuum. On the contrary, from its beginning it has
been firmly embedded in the recognized international legal order. On a number of occasions the
EU Council has reiterated the EU’s adherence to the principles of the United Nations, whereas
the Court of Justice in Luxembourg has had the opportunity to clarify the limits of EU
sovereignty within international law. The Treaties of the European Union contain no rules
governing self-determination, despite a growing number of regions seeking independence.
Neither the Lisbon Treaty, nor the past EU Treaties deal with the issue of self-determination. The
Lisbon Treaty remains silent about what would happen should a region in a Member State decide
to break away. The logic of the EU integration, as mentioned in the Treaty preamble is to build
”an ever closer Union”, by harmonizing laws and practices among the Member States.
Fragmentation, devolution, self-determination or secession have never been seriously
contemplated. As a result there are no guidelines on what would be the legal status of a breakaway region after secession.
Three European regions are currently prominent candidates for secession: Flanders, Scotland and
Catalonia. However, they are each different in its own right: Flanders quest for more
independence has been driven through a number of constitutional reforms undertaken since
1960. If the ultimate objective is full separation from Belgium it stands to reason to assume that
this will happen in a peaceful way, and in agreement with the rest of the country. Scottish
independence referendum in 2014 has been conducted in complete legality as the UK
Government provided the Scottish parliament with the powers to hold referendum.15 The EC had
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Examples of secessions of minorities: the South Sudanese people seceded from Sudan in 2011, the Albanian
people from Kosovo seceded from Serbia in 2008, the Abkhazian and South Ossetian people from Georgia in 2008.
14
Christian Tomuschat is a German jurist. This quotation stems from John Dugard, The Secession of States and
Their Recognition, page 215
15
Edinburgh Agreement of 2012
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suggested the will to start negotiations with Scotland on the day of its independence. 16 Although
the no vote prevailed, Scotland may call for a new referendum should the United Kingdom opt to
leave the European Union following the referendum on Britain membership in the EU.
Catalonia’s push for independence is the most challenging. Evoking the International Covenant
on Civil and Political Rights Catalan people have held a referendum in September 2015. Catalan
nationalist parties won an absolute majority but the move has been dismissed as unconstitutional
by the Spanish government. There are no signs on how to find a way out of the deadlock. Should
one of these cases come to fruition it is likely that other EU regions would follow suit. The
aforementioned examples bear witness to the necessity of a clear position by the EU authorities,
not only on the legality of separatist movements but on the legal, political and economic issues
that would arise in the aftermath of secession.
The European Human Rights architecture
The EU has been conceived as a sui generis setup, with certain features akin to a state,
particularly the direct applicability of its laws and regulations in the Member States. That the EU
has sought to surpass the limits of classical definition of international organization is clear from
Article 2 of the Lisbon Treaty stipulating that “ the Union is founded on certain core values,
including respect for human dignity, freedom and democracy, equality, the rule of law, and
respect for human rights, including the rights of persons belonging to minorities. These values
are common to the Member States in a society in which pluralism, non-discrimination, tolerance,
justice, solidarity and equality between women and men prevail”17 . In the ground breaking
judgment of the Court of Justice of the EU Van Gend en Loos the Court has held that “The
community constitutes a new legal order of international law for the benefit of which the states
have limited their sovereign rights, albeit within limited fields, and the subject of which comprise
not only the member states but also their nationals. Independently of the legislation of member
states, Community law therefore not only imposes obligation on individuals but is also intended
to confer upon them rights, which become part of their legal heritage”18
From this point of view the international legal principles governing self -determination and
secession acquire different meaning as individuals, and not states constitute the centre of EU
legal order. Citizens, not states acquire legal legitimacy as their rights and freedoms gain
primacy over the role of states. Nevertheless, the EU treaties provide no solution for secession,
neither do they deal with the case of separation of a Member State. On one occasion the issue has
16
Daniel Kenealy, How Do You Solve a Problem like Scotland? A Proposal Regarding “Internal Enlargement”,
Journal of European Integration, 2014, Vol.36 N°6
17
Treaty of the European Union, Art 2, 2010, O.J. C 83/17
18
NV Algemene Transport-en Expeditie Onderneming van Gent & Loos v. Netherlands Inland Revenue
Administration, Case 26/62 (1963) E.C.R. 1§ II(B), EUR-Lex-61962CJ0026-EN-EUR-Lex
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been addressed in 2012 in the letter of the European Commission President, José Maria Barroso
to the Chairman of the House of Lords Economic Committee of the UK parliament in which he
stated that” The EU is founded on the Treaties which apply only to the Member States who have
agreed and ratified them. If part of the territory of a Member State would cease to be part of that
state because it were to become a new, independent state, the Treaties would no longer apply to
that territory. In other words a new independent state would, by the fact of its independence
become a third country with respect to the EU and the Treaties would no longer apply on its
territory.”19This position was almost equal to the statement made by the EC President Prodi in
2004. Because the EU legal order is distinct from traditional international law it is questionable
whether the Barroso and Prodi statements hold true. Moreover, on normative grounds the
aforementioned EC position is not in sync with the fundamental proposition of the EU as a
community of individual citizens whose rights should be protected by EU law. By referring to
states as central to the EU order the EC position only reinforces citizens’ perception of an EU
being aloof and disconnected from their real concerns. 20 Moreover, the European Court of
Justice Jurisprudence has on several occasions challenged principles of international law, making
clear that the EC constitutes a distinct legal order.21 Although bound by international law the EU
has been set up an autonomous legal system based on the rule of law, democracy and human
rights, where the rights and obligations of citizens equal those of the Member States. While
stating that “the EU is founded on the Treaties which apply only to the Member States who have
agreed and ratified them” 22the position of the Commission provides too narrow an interpretation
of the very idea of European integration. It might be helpful to take this debate away from a pure
ontological perspective onto the field of democracy and human rights.
Conclusion
With the upcoming referendum on the UK membership in the European Union the issue of selfdetermination and secession within the European Union is likely to be brought again to the
attention of the EU policy makers. During the Scottish referendum in 2014 the Scottish National
19
David Edward, EU Law and the Separation of Member States, in Fordham International law journal 2013, v. 36,
n°5, July, p 1151-1168
20
Worth mentioning is the EU stance in reference to the break- up of Yugoslavia. In support to a peace conference
the European Commission has set up the Arbitration Commission for the purpose of resolving differences over
territorial partition and providing legal advice on the emergence of new states. Chaired by Robert Badinter, former
president of the French Supreme Court (Court de cassation) the Commission laid down preconditions for the
negotiations of new states, including respect for existing frontiers and guarantees for the rights of minorities.
Invoking the principle of uti possidetis the Commission ruled that the right to self-determination must not involve
changes to existing frontiers at the time of independence. Standing in contradiction to this principle, the unilateral
declaration of self-determination of Kosovo case has been considered as a “sui generis”, and does not set a
precedent in international law.
21
ECJ Judgment in Joint cases C-402/05 &415/05 P Kadi& Ali Barakaat International Foundation v. Councilof the
European Union & Commission (2008) ECR-16351
22
Quote from the letter of the then EC President Barroso to UK House of Lord’s Economic Affairs Committee
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Party has come close to promising a second independence vote if Britain decides to leave the
EU. Equally important will be the response from Northern Ireland if it turns out that their
majority is different to that of the UK as a whole. Spain has already hinted it would take back
Gibraltar if Britain leaves the EU. And the claims of many other independence movements in
Europe could be revived as a result.
Would the European Commission sticks to its 2012 position if the EU starts unraveling? What
will be the reaction the European Parliament, the only directly elected body of the EU? In the
past the EP has faced initiative related to minority rights and the right of self-determination, but
has never come up with a clear position on this subject. Contemporary separatist movements
present in almost each Member State encapsulate the growing quest for identity, which if
unanswered threatens to put in jeopardy the very existence of European project.
It is time for the EU to address the challenge of self –determination in the light of underlying
cultural, regional and national differences between the people of Europe. This could help
rebuilding trust in European project and regain the people’s support for European institutions.