The Territorial claim

It is argued that self-determination is not merely about creating a self-governing region or a new State; it also places the territory under a new kind of sovereignty. This raises a general question about self-determination: must a group establish a claim to land rather to its claim to a new government? In fact, both Brilmayer and Buchanan argued that a territorial claim is important and present methods for establishing it. For Buchanan, a group making a territorial claim must either (1) ‘show the ill-begotten nature of the larger State's dominion and demonstrate its own historical claim or (2) evince a threat of genocide, discriminatory redistribution of wealth, or the erosion of its distinctive culture’.⁸¹⁴ Whereas Brilmayer provided a ‘historical grievance’ as the most conjecturally appealing and direct justifications, for a group making a territorial claim.⁸¹⁵ In her opinion, ‘politically self-conscious, geographically concentrated ethnic groups that differ significantly from the rest of the population in the State in which they reside might reasonably claim to constitute the peoples at issue’.⁸¹⁶ In the case of Crimea’s controversial secession from Ukraine, she wrote that

‘what makes a secessionist claim successful in the eyes of the international community, indeed, in the eyes of the people fighting for secession, is the existing of a historical grievance over territory, no such claim can be made surrounding Crimea’.⁸¹⁷ Accordingly, she built her opinion upon a claim to territory; people must have a ‘legitimate historical claim’ to the territory.

It is notable that international law cannot be completely relied upon secession. As Brilmayer has rightly stressed, ‘secession is not simply the formation of a new political association among individuals or the repudiation by a group of persons of their obligation to obey the State's laws’.⁸¹⁸ She stated:

[The principle of self-determination of peoples suggests that every ‘people’ has a right to its own nation-State. While the positive law status of this norm and its applicability to the secessionist context are debatable, on a rhetorical level few deny the principle's appeal. Unfortunately, it seems directly contrary

814 Buchanan, Secession: The Morality of Political Divorce Fort Sumter to Lithuania and Quebec (n 53) 104-114.

815 Brilmayer, 'Secession and Self-Determination : A Territorial Interpretation' (n 46).

816 ibid.

817 L Brilmayer, ‘Why the Crimean Referendum Is Illegal,’ The Guardian (London, 14 March 2014).

818 Brilmayer, 'Secession and Self-Determination : A Territorial Interpretation' (n 46).

149

to another, equally venerable, principle of international law, which upholds the territorial integrity of existing States.]⁸¹⁹

Brilmayer’s framework focused on the relative legitimacy of competing territorial claims as the best way to resolve secessionist disputes. In her view, the legitimate foundation of the secessionist claim is the territorial sovereignty. This approach focuses on ‘the degree of control exercised over a territory’.⁸²⁰ In addition, she identified an active dispute between rights of people and territorial claims. Even so, the two concepts work together to compose a valid claim for the separate group, with the claim to territory being the core of the argument.⁸²¹ In Brilmayer’s opinion, a distinct cultural argument does not itself represent a valid case for secession; without a claim to territory; the argument is illegitimate.⁸²² She argued that ‘international law concentrates on the distinctiveness of the oppressed group, overlooking the importance of a valid claim to territory. She contended that ‘the crux of the argument is not bilateral, between the distinct people and the State, rather it is a trilateral relationship combined of people, State and territory’.⁸²³ From political theory, Brilmayer correctly rejected the notion that democratic principles support a right of ethnically distinct peoples to secede. Instead, she maintained, the critical question is whether such peoples have a legitimate historical claim to the land on which they seek to establish their new State.⁸²⁴ She believed that ‘all sufficiently cohesive and distinct sub-state ethnic groups could form their own State, if they have been a victim of historical injustice’.⁸²⁵ She argued that every separatist movement is built upon a claim to territory, usually based on a historical grievance⁸²⁶, and that without a normatively sound claim to territory; self-determination arguments do not form a plausible basis for secession.⁸²⁷ Brilmayer believed that, this approach resolves the tension between self-determination and territorial integrity ‘because it

819 ibid.

820 Mccorquodale, 'Self-Determination: A Human Rights Approach' (n 248).

821 Brilmayer, 'Secession and Self-Determination : A Territorial Interpretation' (n 46).

822 ibid.

823 ibid.

824 D Wippman, ‘Secession, Territorial Claim, and the Indeterminacy of Determination’ (2000) 25 YJ Int'l L 287.

825 ibid.

826 Brilmayer provided examples to illustrate her point, but which may also suggest why her thesis has not been widely adopted. As example of historical grievances that may justify secession, she mentioned the Soviet Union’s forcible annexation of the Baltic States and European forcible acquisition of colonies in Africa and Asia. In each case, she noted that independence provided a remedy for a clear historical wrong, and a wrong of a particular kind: one that deprived the occupying and colonial states of a legitimate claim to sovereignty over the territory. See Brilmayer, ‘Secession and Self-Determination: A Territorial Interpretation’ (n 46).

827 ibid.

150

permits secession only when a State’s sovereignty over the territory at issue is illegitimate, that is only in situations in which territorial integrity properly understood is not at issue’.⁸²⁸ In fact, there is no general agreement between philosophers of the arguments that secession is based on rights of self-determination and secession is founded on a territorial claim. It is argued that a focus on legitimacy of past territorial injustice may obscure other important issues.⁸²⁹ Territorial sovereignty provides a more legitimate claim for secession than the right of people in the self-determination argument. Hence, the concept of territorial sovereignty does not permit the State to maintain control over territory, without legitimate ownership.⁸³⁰ Territorial demands, asserted by secessionist groups that they have a valid claim to a specific territory exists; however, these claims must be based on solid grounds and the importance should be acknowledged in international law. Brilmayer pointed out those secessionist territorial claims based on historic grievances are more striking and self-evident.⁸³¹ However, in most cases, an assessment of historical wrong does not provide much practical help in resolving secessionist claims. Under this, we would asses territorial claims based on the law of the relevant period. Thus, only a few cases involve historical grievances such as Kosovo, Kurdistan and those involved in colonialism or the annexation of the Baltics. Those cases may generally be resolved without the reference to self-determination or secession.⁸³²

Generally, Brilmayer provided two different perspectives in evaluating secessionist claims.

Traditionally, theorists had focused on the cohesiveness of the group asserting the claim, whether the group in question was a distinct ‘people’ in the religious, linguistic, or ethnic sense.⁸³³ There is another issue however; the objective validity of the claim to a particular piece of territory espoused by the group.⁸³⁴ She believed that the legitimacy of claims to a

828 Wippman, ‘Secession, Territorial Claim, and the Indeterminacy of Determination’(n 824).

829 Wipman argued that ‘While territorial disputes invariably accompany separatist claims, the driving force behind such claims usually combines the opportunism of political leaders with the genuine fears of social, political, and economic marginalisation of vulnerable groups. Any attempt to resolve such problems by redrawing borders to fit a particular critical date reflecting a particular historical grievance is unlikely to successed.’ See, ibid.

830 Brilmayer, ‘Secession and Self-Determination: A Territorial Interpretation’ (n 46).

831 ibid.

832 When Iraq purported to annex Kuwait, its claim to territorial sovereignty over its new province was widely rejected, not on self-determination grounds but because Iraqi control over Kuwait was achieved by use of force in obvious violation of the UN Charter. In addition, even the Baltic States assert, with some justification, that their independence was not an example of secession, but rather the end of an unlawful occupation by the Soviet Union. See, Wippman, ‘Secession, Territorial Claim, and the Indeterminacy of Determination’ (n 824).

833 Brilmayer, ‘Secession and Self-Determination: A Territorial Interpretation’ (n 46).

834 ibid.

151

particular piece of territory will depend on a historical claim to land.⁸³⁵ Regardless of the identity of the group making the claim, ‘the claim itself might be more or less persuasive, depending on historical fact, legal and moral justifications, and so forth’.⁸³⁶ Thus, all separatist claims are valid when they possess a legitimate claim to specific territory. The group must be able to explain why they should own this territory. Brilmayer concluded that ‘a fully grasped comprehension of territorial integrity would embrace the principle of self-determination. Secession disputes always focus on the quest for independent territory’.⁸³⁷ In her view ‘the principle of territoriality defines who the members of a particular political entity are, thus membership is construed not along lines of identity, but residence’.⁸³⁸

Thus, this approach has explained when a self-determination seeking people should be allowed to form a new State, and cause a reduction of the parent State’s territory. However, the validity of the historical claim alone cannot explain the results of secessionist struggles over the past few decades. In other words, secessionist claims to independence are only convincing if the secessionist group can prove that their territory was illegally annexed into the parent State,⁸³⁹ and they have a legitimate and historical claim over the territory.

Nonetheless, in Kosovo, the international community did not regard this as an abstract theory to justify secession.⁸⁴⁰ Accordingly, secession could be construed as consistent with the norm of territorial integrity because international law truly deals with secessionist claims by evaluating the people’s claim to a particular territory.⁸⁴¹ In addition, the problem with this approach is that it tends to ignore internal self-determination and focuses on the exercise of external self-determination. In many situations, secession or total independence from the parent State is not the only or even necessary means of exercising the right of

839 The Baltic States argued that they were illegally conquered by Soviet Union’ Tibet says the same about China; and Eritreans fought for decades to reserve their illegal annexation by Ethiopia. See, Brilmayer, ‘Why the Crimean Referendum Is Illegal', (n 817).

840 In Kosovo, the international community did not regard Kosovo’s incorporation into Serbia as an illegal annexation of territory precludes the applicability of this abstract theory to Kosovo’s secession. See, Sterio, The Right to Self-Determination under International Law: Selfistans, Secession, and the Rule of the Great Powers (n 140) 177. She gave more examples such as, ‘The Bosnian Serbs, the Turks in Northern Cyprus, the Chechens, the South Ossetians, and the Abkhaz may have historical claims to their territories that are as sound as those asserted by the East Timorese, the Kosovar Albanians, and the South Sudanese. In addition, many of the successful peoples that have recently gained independence have significant minority groups living within their newly formed states; such minority groups could, in turn, assert perfectly legitimate historical claims to their bits of the new secessionist state.’ See, ibid 179.

841 ibid 176.

152

determination, and there is a strong presumption against secession in non-colonial situations.

In addition, Chaulia argued that the territorial approach does not discuss how the influence of great powers has affected the alteration of territory, either to accommodate a people or to preserve the territorial status quo of the parent State.⁸⁴²

Furthermore, it is assumed that the idea behind this approach is that the self-determining group is somehow taking land that belongs to the larger State. However, it is argued that the State does not own the territory, and that a person owns land. Brilmayer agreed with Buchanan when he said that, ‘the relationship between the State and its territory is not the same as that between a person and the land, which is in her private property’. In his opinion that the State governs, not owns, it is a matter of government not land, and that does not translate into a right of self-determination.⁸⁴³ A group must still make a territorial claim by

‘demonstrating particular grievances and threats-discriminatory redistribution, cultural endangerment, and so on’.⁸⁴⁴ For him these criteria establish the right of self-determination and secession. However, one can still ask, why are these important? Once the right to secede has been founded, why does an additional territorial claim have to be made? Would it not be subsumed with that claim of an entitlement to secede? In what context is land an issue beyond the sense in which government is an issue?⁸⁴⁵

842 Chaulia pointed out that ‘peoples that struggle for independence from strong, powerful states will not succeed because “large and powerful countries with stable polities such as Russia, China, and India can defend their territorial integrity and are unlikely to become candidates for Kosovo-type challenges.” See, S Chaulia, 'A World of Selfistans? After Kosovo’s Declaration of Independence, Is the World Heading toward a Proliferation of New States?' (Foreign Policy In Focus, 2008) <http://fpif.org/a_world_of_selfistans/> accessed 17 February, 2014.

843 Buchanan, Secession: The Morality of Political Divorce Fort Sumter to Lithuania and Quebec (n 53) 108.

844 ibid.

845 For more details see, Philpott, 'In Defense of Self-Determination' (n 780).

153