To Break Free from Tyranny and Oppression: Proposing a Model for a Remedial Right to Secession in the Wake of the Kosovo Advisory Opinion
PDF · Evan M. Brewer · Jun-13-2012 · 45 VAND. J. TRANSNAT'L L. 245 (2011)
Too often states have invoked territorial integrity and nonintervention in defending abuses perpetrated against peoples within their borders. This practice must be stopped by embracing a robust remedial right to secession. Remedial secession takes place when an oppressed people creates an independent state by seceding from a state that denies its right to self-determination. It has been speculatively posited as an “extreme circumstances” possibility, but remedies to denials of the right to self-determination have not been clearly determined beyond the decolonization context. In the post-colonial era, international law has recognized the importance of fundamental human rights to such a great degree that the right to remedial secession now warrants assessment as a possible entitlement. The Kosovo Declaration of Independence and its adjudication before the ICJ showcased the tension between self-determination and territorial integrity, demonstrating that territorial integrity must not protect those committing egregious violations of human rights. This Note then proposes that the remedial right to secede should vest in a group that: (1) constitutes a “people,” (2) has been systematically oppressed, (3) has been denied self-determination within the existing state, (4) freely chooses to secede, and (5) respects the rights to self-determination of other minorities. This proposal offers a last-resort way for a victimized people that has been denied its rights under international law to exercise self-determination.