The doctrines of self-determination and territorial integrity provide
autonomy to two different entities of international law, the individuals, and
the state respectively. The presence of these rights provokes a conflict between
the autonomy of the state and the autonomy of the people within the state. As a
result of a conflict between the two principles, the international community
favored the state's sovereignty over the rights of the individuals.
The universal endorsement of territorial integrity trumps the right of
individuals within the state. Upon such expression by the international
community, this paper aims to cross check the truth behind this expression. The
paper will analyze if the acceptance of the territoriality arises from the
state's compliance with the right to self-determination. Consequently, the paper
will answer whether the doctrine of self-determination is restricted by
territorial integrity or is it the other way around in international practice.
The right to self-determination was officially adopted in the Charter of the
United Nations in Article 1(2)[i]. However, the charter neither explains the
term nor does it lay down any specific context or element concerned with
self-determination. Self-determination is generally understood as the right of
individuals to determine their political status. Moreover, in the non –
existence ofany direct definition, the theoretical understanding of
self-determination is segregated into internal and external self-determination.
Internal determination is exercised within the boundaries of the state and
external right is employed to revolutionize the state's boundaries. Internal
self-determination is broadly related to the status of the relationship between
the people in the state and the government of the state. It provides people with
the representation needed in the state, along with the right to decide their
governing body.Due to the internal application of the right, there is no
international objection to it.
On the other hand, external self-determination extends to the right of
individuals in the state to determine their status by seceding from the present
state and formulating a new state or uniting with an already existing state.
Owing to the possibility of secession via external right, it is contended to
conflict with the state's right to territorial integrity.
Territorial integrity implies the right of state to remain as one with the same
territorial boundaries and actions such as secession will disrupt the territory
and oneness of the state. Thus, thesignificance of the integrity and unity of a
state in international law renders the concept of external self-determination
invalid. However, the following part of the article will examine if the external
self-determination is invalid in all circumstances, or the international
practice provides conditions for the application of external self-determination.
It is crucial to highlight the international validation of external
determination in the case of colonized states. In the 1950s, the right to
self-determine was seen as a significant tool to free the colonies from their
colonizers; although the committee formulating the UN Charter never saw the
right as a tool for decolonization. With this revolution and Resolution 1514(XV)
the application of external right for decolonization was validated and this
application was not against territorial integrity. The validation of external
right conveys that the right can be employed for international measures when the
situation calling for it arises.
Till date the use of external self-determination is restricted due to the
principle of territorial integrity in every circumstance other than
decolonization. However, this position can be negated, and a claim can be made
that the individuals within the state can exercise secession when they are not
provided with the internal right of self-determination. In other words, the
territorial integrity of a state is limitedto its compliance with the right of
self-determination; thus, the scope for external right beside decolonization.
This claim can be supported by certainexplanatory provisions and incidents at
the international level.
Besides the UN Charter, the right toself-determination is also mentioned in
Article 1 of ICCPR and Article 1 of ICESCR. These covenants as well do not
provide any definition or implication of the right. However, they highlight the
importance of compliance with the right to achieve the larger goal of universal
peace and security.Owing to the absence of any clear definition, the
interpretative burden falls upon a declaration passed by the General Assembly.
The interpretative role is upheld byte International Court of Justice while
mentioning the authoritative position of a declaration for the interpretation of
international principles. Friendly Relations Declaration provides for the
interpretation that validates external self-determination. According to
paragraph 7 of Principle V in this declaration, the territorial integrity of a
state is vital, but it may not be protected if the state is not conforming with
the right of representation and self-governance internally.
The declaration restricted itself to racial and religious groups for the benefit
of this non-compliance. However, there are other declarations to support the
same claim and include others too. The Vienna Declaration also mentions the same
language and includes that the government must represent and provide opportunity
for representation to all without differentiating in any manner. The same
inference can also be drawn from Article 1(3) on self-determination in the
Fiftieth Anniversary Declaration.
The apparent conclusion from these declarations is that territorial integrity is
not guaranteed to the state if it differentiates any group and obstructs their
right to internal self-determination. Thus, the territorial integrity of the
state is restricted by the compliance with internal self-determination and in
case of non-compliance the individuals may exercise remedial secession.
Additionally, the CSCE Final Act can also be employed to back the claim on the
validity of external determination in certain violative conditions. Principle
VII of the Act, while stressing the territorial integrity of the state, entails
the importance of internal self-determination and refers to the possibility of
external self-determination or secession. It also puts weight on the
significance of this right within the state for friendly relations and the
larger goal of universal peace and security. Moreover, the Act also stresses
that the self-determination right must not be violated at all.
All the declarations convey the belief that the state may not continue to enjoy
its territorial integrity and political unity if it does not represent all the
individuals of its state and comply with self-determination. The primary idea
behind this belief is that the state conforms with internal right and if it does
not comply, then the right of self-determination will be available to the
individuals in entirety. However, external self-determination cannot be used
arbitrarily and as the first remedy in case of violation of internal right. The
external determination or secession must be utilized as the last alternative
after employing all the less assertive remedies to the group.
Consequently, the external determination must be looked at as remedial secession
for the oppressed people. Moreover, it should be allowed when it is evident that
internal self-determination is not reasonable. Therefore, unlike the colonies,
the group within the state cannot be granted the right of secession merely on
denial of representation, there has to be a massive violation of human
rights.According to Anderson, there is a higher standard for the application of
The standard includes:
- intentional, prolonged, and organized discrimination;
- sufficient connection linking the discrimination and the claim for
- the existing entity must comply with human rights in the newly
established state; and
- the entity claiming secession must attain statehood. Hence, the
practical interpretation of self-determination conveys the possibility of
secession as the last remedy.
Besides practical interpretation of the texts, the presence of remedial
secession can also be substantiated via certain international judgments. In
1921, the Commission of Jurists and Commission of Rapporteur concluded that no
unqualified right of secession can be granted on the wish of an existing entity
if the state agrees to accept its demand of self-determination.
However, if the state fails to fulfill such demand either by will or lack
of power, then the discriminated minority may secede as it might be the last
remedy possible. A similar position was taken by the judges of the European
Court of Human Rights in the case of Loizidou v Turkey[ii], the judges
opined that remedial secession is possible in circumstances where the
individuals of the state are discriminated against and have no or little
political representation in their state.
Another crucial judgment on the same lines was passed by the Supreme Court of
Canada[iii], where the court emphasized the possibility of external
self-determination in three cases:
- individuals under military occupation; and
- non-representation to a group within the state to fulfill their
political, social, economic, and cultural development.
These proclamations convey the presence of external self-determination within
the overall right of self-determination. However, all the judgments confirmed
this right in the absence of internal self-determination.
In addition to court pronouncements on self-determination, the international
community has also witnessed some secessionist movements. According to Crawford,
Bangladesh is an apt example of the exercise of external self-determination as
remedial secession. The secession of Bangladesh from Pakistan acted as the last
possible remedy to the human rights violation and non-representation faced by
the Bengali population in the Pakistani state.
This incident can support the claim that the right of remedial secession is a
possible entitlement for oppressed individuals in the state.After the case of
Bangladesh, another case widely accepted internationally was the unilateral
secession of Kosovo[iv] from the state of Serbia. Unlike the case of Bangladesh,
the court discussed and delivered a judgment on the secession of Kosovo. The
court was posed with a very narrow question on the legality of Kosovo's
secession, and it answered the question in affirmation.
The court did not comment on the remedial secession of Kosovo as it was not part
of the question posed to it, but the position on remedial secession can be
interpreted from pleadings of other states. Along the same line as the court,
the majority[v] of states have accepted this secession and many reasoned it as
remedial secession as there was no visible option available with the people of
Kosovo to exercise their right to self-determination. [vi]
However, some states claimed the 'sui generis' character of Kosovo in the
international community to accept the secession. However, few states did not
explicitly discard the concept of remedial secession but argued its
non-application on Kosovo.[vii] Moreover, the opinion of Judge Yusuf in the
Advisory Opinion of ICJ on Kosovo also directed towards the link between
internal and external self-determination, where non-compliance with internal
right may lead to remedial secession.
The scheme of states in granting sui generis character to Kosovo is seen as
restricting the movement of secession just to the situation of Kosovo. However,
this restriction can be lifted bydisproving the sui generis status of Kosovo.
Abkhazia, a state in the South Caucasus, and its struggle with Georgia convey
strong similarity with the situation of Kosovo. Both these cases represent the
equivalent intensity of human rights violations with prolonged denial of the
right to internal self-determination.
Thus, the sui generis claim of restricting secession cannot be seen as
realistic. Hence, after discarding the sui generis restriction, the wide
acceptance of secession in Kosovo implies that if a situation similar to Kosovo
arises internationally then the right of external self-determination can be
However, this can still not be considered as complete support as there are many
states not supporting the secession. Moreover, a comparison of Abkhazia and
Kosovo also highlights the state practice, where the statesfeel obliged to
support the secessionist movement because it would be politically beneficial to
After analyzing all the possible ways to support external self-determination, it
can be deduced that there are provisions and declarations to support the
presence of remedial secession in a textual context. However, the obligation of
states to strengthen this principle is highly influenced by their political
agenda.Hence there is some sort of partial obligation in place concerning the
right of external self-determination in the international community.
Consequently, it can be asserted that UN Charters, covenants, declaration, and
other acts endorse the presence of self-determination and support the
proposition that the territorial integrity of states is limited to their
compliance with the terms of internal self-determination.This implies that no
state enjoys absolute territorial integrity without complying with the crucial
right to internal self-determination.
However, in relation to the obligation on part of the state it can be claimed
that with time, the partial support for remedial secession would convert to
complete support. This interpretation of external self-determination is valuable
as itdoes not completely negate the possibility of remedial secession but makes
some ground for the development of the principle in the future.
- 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, Article 1(2), UN
- (1997) 23 EHRR 244 (European Commission of Human Rights), 535 (Judge
Wildhaber concurring, joined by Judge Ryssdal).
- Supreme Court of Canada: Reference re Secession of Quebec, 2 S.C.R 217
- Accordance with International Law of the Unilateral Declaration of
Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010.
- As of 4 September 2020, 98 out of 193 (51%) United Nations (UN) member
states, 22 out of 27 (81%) European Union (EU) member states, 26 out of 30
(87%) NATO member states, and 31 out of 57 (54%) Organization of Islamic
Cooperation (OIC) member states have recognized Kosovo.
- See the oral statements of Albania, ICJ Verbatim Record, Accordance with
International Law of the Unilateral Declaration of Independence by
Provisional Institutions of Self-government of Kosovo (Request for Advisory
Opinion) CR 2009/26 (December 2, 2009); the United Kingdom, ICJ Verbatim
Record, CR 2009/32 (December 10, 2009).
- Interestingly, Russia did not argue against the concept of remedial
secession as such; it only held that it is not applicable in the situation
of Kosovo. See ICJ Verbatim Record, CR 2009/30 (December 8, 2009).
- Russia is a prime example of states practicing partial obligation of
accepting remedial secession. Despite, strong similarities between the
situation of Abkhazia and Kosovo, Russia promoted the right to external
self-determination in case of Abkhazia due to political benefits, whereas it
did not accept the application of external self-determination in Kosovo due
to its ties with Serbia.
Written By: Tanu Kankariya, 4th Year Law Student At Jindal Global Law