Most analysts define secession as the unilateral political withdrawal from an established state. Some define it as territorial disintegration from an existing legally-constituted and internationally recognised state that possesses a geographically-delineated territory, population and government.
A variant of this, is irredentist secession, where the breakaway group seeks to merge the seceding territory with a neighbouring country.
This can be on the basis of either religious or ethnic grounds, often where a majority of those seceding share a religious and/or ethnic identity with those in the neighbouring country (as happened with Kenyan Somalis in the 1960s). Secession can also take place following a protracted struggle and final agreement between leaders of conflicting groups to go their separate ways (as happened between North and South Sudan).
In a few cases, constitutional secession occurs with the existing state’s consent, and may not involve severance of territory.
This type is normally negotiated within the framework of the existing state’s constitution. This scenario can also be viewed as a form of self-determination without secession, as it merely involves a culturally homogenous group with justifiable cause for recognition and rights, seeking autonomy and yet remaining part of the mother state. As a result, it forms a “sub-state” within a State.
For example, in 2000, through a negotiated constitutional amendment, the Canadian Supreme Court granted the province of Quebec the right to nationhood within Canada and the same was endorsed in 2006 by the Canadian House of Commons.
It is also important to separate the concept of self-determination as used by secessionist groups to justify their breakaway actions and its usage by liberation movements seeking to liberate their countries from occupying or colonising powers; for example, the various colonial liberation processes that led to the decolonisation of Africa in the 1950s to the 1990s. In this context, self-determination is actualised without forming a new state as opposed to classical secession which connotes breaking away with a part of an existing territory.
Consequently, self-determination is widely viewed as a positive step towards democratisation of the socio-economic and political condition of the people concerned, while secession is generally resisted and frowned upon as disruptive and reducing the form and value of the mother state. This may explain why most secessionist movements prefer to label and justify their cause as grounded in the right to self-determination.
Secessionist movements have, therefore, for decades found justification in legal provisions in domestic and international laws. Often cited, is the principle of self-determination provided for in the 1945 United Nations Charter, under Articles 1 and 55, which has been used as a basis for the attainment of socio-economic, cultural and political wellbeing; all of which are considered preconditions for peace and friendly relations among nations. This principle has been domesticated in almost all regional treaties and national constitutions. It is, however, important to note that nowhere does the UN charter explicitly authorise secession.
Elsewhere, the preamble of the 1966 International Covenant on Civil and Political Rights provides that recognition of dignity and rights of all members of the human family is the foundation of freedom, justice and peace in the world.
The Covenant declares in Article 1 that “All people have the right of self-determination, creating sovereign statehood”. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.
In addition, the UN Resolution 1514 (XV) of 1960 and UN Resolution 2625 (XXV) of 1970 buoyed the rights of people and nations to constitute their own statehood.
In Africa, the 1963 OAU Charter and its successor, the 2002 African Union Constitutive Act both recognise the values and provisions of the UN Charter and the Universal Declaration of Human Rights, effectively lending support for self-determination. Similarly, national constitutions have domesticated international treaties. In the Kenyan case, this domestication is provided for in Article 2 (5 & 6) of the Constitution and in various articles under Chapter 4 on the bill of rights. It should, however, be noted that at no point does the Kenyan constitution explicitly provide for secession.
These international legal norms nevertheless provide the backdrop against which the principle of self-determination has repeatedly been invoked by different groups around the world to push for autonomy and secession.
Sunday: The principle of self-determination is interpreted
Maria Nzomo is professor of International Relations & Governance and Institute of Diplomacy & International Studies director, UoN and former ambassador of Kenya to the UN & WTO. [email protected]