Electronic Thesis and Dissertation Repository

Degree

Master of Studies in Law

Program

Studies in Law

Supervisor

Dr.Valerie Oosterveld

Abstract

Secession has contributed to nearly 50 intra-state armed conflicts around the world, and remains a complex issue in public international law. Over the past 72 years, several cases stand out as providing evidence of state practice with regards to invoking a successful right to unilateral secession: Bangladesh, Croatia, South Sudan, East Timor, Eritrea and Kosovo, to name a few. However, apart from invoking a right to secession, these cases also share a common factor that legitimized their independence: their Unilateral Non-Colonial (UNC) secessions became legal as a result of two factors: (i) an invocation of a right to self-determination which was systematically denied and, (ii) the denial of self-determination was followed by egregious abuses of human rights deemed as in extremis (ethnic cleansing, genocide and mass killings). A priori, should a putative state have the right to unilaterally secede based on human rights considerations alone? And if it secedes, should the use of force by the putative state or a third-party state in its defense be considered a violation of the prohibition on the use of force, if it is done in response to in extremis cases of human rights abuses?

This thesis will defend the existence of three core suppositions of the principle of self-determination: (i) that the principle of self-determination exists as a legal right under international law, (ii) that the principle of self-determination provides a qualified right of a UNC secession, and lastly, (iii) that, in cases where the principle of self-determination is systematically denied (combined with human rights abuses designated as in extremis), a legal right may be invoked to a military intervention by a third-state. In turn, the preceding suppositions will be examined in light of case studies that either justify or reject UNC secessions on the basis of the previously outlined criteria; demonstrating a legal exception to the use of force in humanitarian crises of a self-determination nature, as well as a framework for the consideration of the legitimacy of newly formed states by way of UNC secessions.


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