¹ International law neither allows nor prohibits secession. Yet, the international response towards unilateral secession is strong and that can be seen in the recent example of Crimea. See, for example, UNGA Res. 68/262 from March 17, 2014 in which the General Assembly relied upon resolution 2625 (XXV) of October 24, 1970 and the UN Charter to affirm its commitment to the sovereignty, political independence, unity, and territorial integrity of Ukraine within its internationally recognized borders.Google Scholar

² See Vienna Convention on the Law of Treaties, art. 53, May 23, 1969, 1155 U.N.T.S. 331 (defining the peremptory norms of international law (jus cogens)); U.N. Charter art. 2 (placing territorial integrity or political independence of any state as principle and proclaiming that threat or use of force against the territorial integrity or political independence as inconsistent with the Purposes of the United Nations).Google Scholar

³ See, e.g., Antonio Cassese, Self-Determination of the Peoples, A Legal Reappraisal (1995); Lee C. Buchheit, Secession, The Legitimacy of Self-Determination (1978); Stanislav V. Chernichenko & Vladimir S. Kotlyar, Ongoing Global Legal Debate on Self-Determination and Secession Main Trends, in Secession and International Law: Conflict Avoidance and Regional Appraisals (Julie Dahliz ed., 2003); Kristin Henrard, Devising an Adequate System of Minority Protection (2000); Kamal S. Shehadi, Ethnic Self-Determination and Break up of States (1993); Diane F. Orentlicher, International Response to Separatist Claims, in Secession and Self-Determination (Stephen Macedo & Allen Buchanan eds., 2003); Alfred Cobban, The National State and National Self-Determination (1969); Allen Buchanan, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (1991); Anthony H. Birch, Nationalism and National Integration (1989).Google Scholar

⁴ For example, the movements for Scottish independence from UK and for independence of Flanders from Belgium can be considered peaceful movements compared with the movement for independence of Xingjian from China or Somaliland from Somalia. For more, see Separatist Movement Around the World, Uppsala Conflict Data Program (2013).Google Scholar

⁵ Connected with the issuing of the Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514 (XV), U.N. GAOR, 15th Sess., Supp. No. 2, U.N. Doc. A/RES/1514(XV) (Dec. 14, 1960).Google Scholar

⁶ East Timor (Port. v. Austl.), 1995 I.C.J. 90, 102 (June 1995). East Timor was administered by Portugal. Portugal sought to establish a government, but fighting broke out between supporters of independence and those who wanted integration with Indonesia. Portugal withdrew and Indonesia incorporated East Timor as its twenty-seventh province. In 1982, Portugal and Indonesia began negotiations for the status of East Timor. After the agreement, the UN Secretary got the power to start the consultations in order to determine the true will of the people of East Timor—independence or autonomy status within Indonesia. The will of the people was independence, but the Police that was pro integrative, supported by Indonesia, launched a violent campaign in which many people were killed and displaced. UN re-established peace, Indonesia withdrew, and since 1999, the UN took charge of running East Timor by establishing international administration. East Timor became independent in 2002 and was admitted to the UN membership.Google Scholar

⁷ Halim Moris distinguishes military domination, economic domination, and cultural dominance in Self-Determination: An Affirmative Right or Mere Rhetoric?, 4 ILSA J. Int‘l & Comp. L. 201 (1997). According to Marc Weller, self-determination as a positive entitlement to secession has been applied only to classical colonial entities and closely analogous cases as cases of armed occupation, racist regimes (South Africa), and alien domination (Palestine), in addition to instances of secondary colonialism (Western Sahara, East Timor). See Marc Weller, Settling Self-Determination Conflicts: Recent Developments, 20 Eur. J. Int‘l L. Vol. 1 (2009).Google Scholar

⁸ See generally Halperin, Morton H., David J. Scheffer & Patricia L. Small, Self-Determination in the New World Order (1992); Antonio Cassese, Self- Determination of the Peoples, a Legal Reappraisal (1995); Emilio J. Cardenas & Maria Feranda Canas, The Limits of Self-Determination, in Self-Determination of Peoples, Community, Nation, and State in an Interdependent World (Wolfang Danspeckgruber ed., 2002); Hurst Hannum, Autonomy, Sovereignty, and Self-Determination, the Accommodation of Conflict Rights (1990); Dinah Shelton, Self-Determination and Secession: The Jurisprudence of the International Human Rights Tribunals, in Secession and International Law, supra note 3; Joshua Castellino, International Law and Self-Determination (2000); Richard Falk, Self-Determination Under International Law, in Self-Determination of Peoples, Community, Nation, and State in an Interdependent World (Wolfang Danspeckgruber ed., 2002).Google Scholar

⁹ One of these arrangements can be the autonomy arrangements pioneered in Western Europe, starting with the Åland Islands. This trend continued into the Cold War years, ranging from the South Tyrol agreement, through devolution in Spain and the United Kingdom, to special provisions in Belgium, Denmark, and Portugal. Recently, autonomy was negotiated successfully in Eastern Europe, particularly in relation to Ukraine (Crimea) and Moldova (Gagauzia). Enhanced local self-government was also deployed as a substitute for formal autonomy in the Ohrid Agreement addressing the conflict in Republic of Macedonia in 2011, for more see Weller, supra note 7.Google Scholar

¹⁰ Almost all of these countries have experienced related potential conflicts, namely, Bosnia and Herzegovina, Macedonia, Kosovo, etc. See Separatist Movement Around the World, supra note 4.Google Scholar

¹¹ See Norman, Wayne, Domesticating Secession, in Secession and Self-Determination, 194 (Stephen Macedo & Allen Buchanan eds., 2003) (proposing constitutional provisions for secession to be put in the constitutions of advanced democracies such as Canada, Belgium, and France, with the possibility to apply possible outcomes or solutions in divided societies such as the ones often found in the Balkans).Google Scholar

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¹⁵ U.N. Charter, art.1, ¶ 2.Google Scholar

¹⁶ See U.N. Charter, art. 55.Google Scholar

With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: higher standards of living, full employment, and conditions of economic and social progress and development;-solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and-universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

¹⁷ G.A. Res. 1514, supra note 5.Google Scholar

¹⁸ G.A. Res. 1541, supra note 14.Google Scholar

¹⁹ See ICCPR & ICESCR art. 1.Google Scholar

²⁰ See, e.g., Henrard, supra note 3; Buchheit, supra note 3; Cassese, supra note 3; Eyassu Gaym, People, Minority and Indigenous: Interpretation and Application of Concepts in the Politics of Human Rights (2006); Ved. P. Nanda, Self-Determination Outside Colonial Context: The Birth of Bangladesh in Retrospect, in Self Determination: National Regional and Global Dimensions (Yonah Alexander & Robert A. Friedlander eds., 1980).Google Scholar

²¹ G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 18, U.N. Doc. A/RES/25/2625 (Oct. 25, 1970).Google Scholar

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²³ The territorial integrity and political independence of the State are inviolable. See G.A. Res. 2625, supra note 21.Google Scholar

²⁴ See Cristescu, Aurelieu, The Right to Self-Determination, Historical and Current Development on the Basis of United Nations Instruments, U.N. Doc. E/CN.4/Sub.2/404/Rev.1 (1981).Google Scholar

²⁵ The title of the right of self-determination are the people, and this right has been recognized although in theory and in international instruments what falls under the category of “people” is not yet defined. In the context of colonialism, the people—as the holders of the right to self-determination—were considered colonial countries and people, and, later, people subjected to foreign domination or occupation. In regard to this question, the particularly important debates were held in the UN in the middle of the last century, although no consensus was reached. Although some argue that the term “people” should be understood in the most general sense, according to the elements that emerged from the U.N. debates, the term “people” means: (a) A social entity possessing a clear identity and its own social characteristics; (b) implies relation to a particular territory, even if the people in question were expelled from it and replaced by another population; and (c) the term “people” should not be replaced with ethnic, religious or linguistic minorities whose existence and whose rights are recognized in article 27 of the ICCPR. See more in Cristescu, supra note 24.Google Scholar

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²⁷ See G.A. Res. 2625, supra note 21.Google Scholar

²⁸ See Domingo, Rafael, The Crisis of International Law, 42 Vand. J. Transnat'l L. 1543 (2009).Google Scholar

²⁹ See Cassese, supra note 3.Google Scholar

³⁰ See Johan D. Van Der Vyver, Self-Determination of the Peoples of Quebec Under International Law, 10 J. Transnat‘l L. & Pol‘y 1, 26 (2000).Google Scholar

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³² See ICCPR art.25.Google Scholar

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.

³³ See G.A. Res. 2625, supra note 21, § 1 (noting “[e]ach State has the right freely to choose and to develop its political … system” does not necessarily include secession and independence).Google Scholar

³⁴ See, e.g., The Final Act of the Conference on Security and Cooperation in Europe (Helsinki Final Act), Aug. 1, 1975, 14 I.L.M. 1292; Concluding Document of the Vienna Meeting of Representatives of the Participating States of the C.S.C.E., Jan. 19, 1989; O.S.C.E. Charter of Paris for a New Europe, Nov. 21, 1990; Universal Declaration of the Rights of Peoples, Charter from Algiers, July 4, 1976.Google Scholar

³⁵ “In the phase of creation.” See Cassese, supra note 3, at 312.Google Scholar

³⁶ See Moris, , supra note 7.Google Scholar

³⁷ See generally Tamir, Yael, Liberal Nationalism (1993).Google Scholar

³⁸ Id. at 240–44.Google Scholar

³⁹ See Kymlica, Will, Multicultural Citizenship (2004).Google Scholar

⁴⁰ See Habermas, Jurgen, The Inclusion of the Other (1998).Google Scholar

⁴¹ Hobsbawm, Eric, The Nations And Nationalism After 1780 (1993).Google Scholar

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⁴³ See Kymlica, , supra note 39. Notable examples include Macedonia, Kosovo, Transdniestria, Cyprus, Bosnia, and Herzegovina and many more that were considered to be sufficiently unstable and dependent on the warrant of external guarantee powers.Google Scholar

⁴⁴ See, e.g., Kymlica, , supra note 39; Rein Mullerson, Sovereignty and Secession: Then and Now, Here and There, in Secession and International Law: Conflict Avoidance and Regional Appraisals, supra note 3; Atul Kohli, Self-Determination Movements in India, in Self–Determination of Peoples, Community, Nation, and State in an Interdependent World, supra note 8.Google Scholar

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⁴⁶ See Norman, , supra note 11, at 220.Google Scholar

⁴⁷ See Smith, Anthony D., National Identity (1998).Google Scholar

⁴⁸ Walzer, Michael, Spheres of Justice 259 (1983).Google Scholar

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⁵¹ For division of theories, see Aleksandar Pavkovic & Peter Radan, Creating New States, Theory and Practice of Secession (2007).Google Scholar

⁵² According to Ivo Duchacek, there are stages in the development of reasons for secession. The first stage is the injustice and alienation of the territorial region from the center. The next stage is the start of the independence movement. These stages are propelled further by the driving forces of emotions and nationalism. See Ivo Duchacek, Comparative Federalism: The Territorial Dimension of Politics (1970).Google Scholar

⁵³ See, e.g., Wood, John R., Secession: A Comparative Analytical Framework, 14 Can. J. Pol. Sci. 109 (1981); Anthony D. Smith, The Ethnic Revival (1981); Anthony D. Smith, Towards a Theory of Ethnic Separatism, 2 J. Ethnic & Racial Stud. 21 (1979); Donald L. Horowitz, A Right to Secede? Secession and Self-Determination (2003); Michael Hechter, The Dynamic of Secession, 35 Acta Sociologica 267 (1992).Google Scholar

⁵⁴ See, e.g., Bookman, Milica Zarkovic, The Economics of Secession (1992); Paul Collier & Anke Hoeffler, The Political Economy of Secession (2002).Google Scholar

⁵⁵ See Buchanan, Allen, Theories of Secession, 26 Phil. & Pub. Aff. 31 (1991).Google Scholar

⁵⁶ See Rothbard, Murray N., Nations by Consent: Decomposing the Nation-State, 11 J. Libertarian Stud. 1, 10 (1994) (creating this theory).Google Scholar

⁵⁷ See Beran, Harry, A Liberal Theory of Secession, 32, Pol, Stud. 20 (1984); Harry Beran, A Democratic Theory of Political Self-Determination for a New World Order, in Theories of Secession (Percy B. Lehning ed., 1998).Google Scholar

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⁵⁹ See Birch, Antony H., Another Liberal theory of Secession, 32 Pol. Stud. 596 (1984); Alan Buchanan, The International Institutional Dimension of Secession, in Theories of Secession (Percy B. Lehning ed., 1998); Yael Tamir, Liberal Nationalism (1993).Google Scholar

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⁶¹ In this respect, Antonio Cassese thinks that it is necessary to reassess the international law, because the rejection of secession from the doctrine is extremely unrealistic. See Cassese, supra note 3, at 348–49. For Buchheit, there are two paths; one is to leave the question to some future, wiser generation, and the other is to try to examine the validity of secession by developing the methods for assessment of certain kinds of requirements—or at least to determine which groups can meet such requirements. See Buchheit, supra note 3, at 223.Google Scholar

⁶² Based on this agreement, the Scottish and English Parliaments were united and together formed the Parliament of the United Kingdom in Westminster Palace London. See Act of Union, 1707, 6 Ann., c. 11 (U.K.).Google Scholar

⁶³ See Scotland Act, 1998, c. 46.Google Scholar

⁶⁴ BBC Scotland is a constituent part of the British Broadcasting Corporation, publicly financed medium of Great Britain. Scotland has its own printed media and radio.Google Scholar

⁶⁵ See Act of Union, 1707, 6 Ann., c. 11 (U.K.).Google Scholar

⁶⁶ Scotland Act, 2012, c. 11.Google Scholar

⁶⁷ The Parliament of the United Kingdom did not agree to pass this Act without the prior consent of Scottish Parliament. Before the Scotland Act of 2012, the Scottish Parliament (Constituencies) Act from 2004, the Constitutional Reform Act from 2005, and the Scotland Act from 1998 were amended and the institutions of Scotland underwent procedural reforms. See The Scotland Act, The Scottish Parliament, http://www.scottish.parliament.uk/visitandlearn/Education/21139.aspx.Google Scholar

⁶⁸ See Agreement between the United Kingdom Government and the Scottish Government on a referendum on independence for Scotland, Scottish Gov't (Oct. 15, 2012), http://www.gov.scot/About/Government/concordats/Referendum-on-independence [hereinafter Agreement].Google Scholar

⁶⁹ ETA (Euskadi Ta Askatasuna—“Basque Country and Freedom”) started as an idea that evolved into a violent movement, and, ultimately, into a political party.Google Scholar

⁷⁰ Although the term Basque Country traditionally is used to refer to the geographical area from both sides of the Pyrenees that extends between the frontier among the territories of Spain and France, the Basque Country is referred to in government documents as the Basque Provinces in Spain, Basque Autonomy region. Currently, the historical and cultural area of the Basque Country is divided into three political structures two in Spain, the Autonomous Community of the Basque Country composed of three Basque provinces (Alava, Guipúzcoa, and Vizcaya) and the Community Navarra, that have their own administrative structures while the third province, which is significantly smaller and composed of three municipalities, is in France and does not have own structure. See Agreement, supra note 68.Google Scholar

⁷¹ See Idoiaga, Gorka Espiau, The Basque Conflict: New Ideas and Prospects for Peace, United States Institute for Peace Special Report (Apr. 1, 2006), http://www.usip.org/publications/the-basque-conflict-new-ideas-and-prospects-peace.Google Scholar

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⁷³ See C.E., B.O.E. n. 1–3, Dec. 29, 1978 (Spain).Google Scholar

⁷⁴ The Spanish Constitution was formally approved by a national referendum and Spain became a democratic state that guaranteed the protection of the nationalities and regions within their borders and historic rights. But despite these safeguards, the Constitution did not fully satisfy the Basque nationalists who felt that they were left out of the process of participating in political decision-making. Basque national parties convinced the voters not to vote on the referendum, which led 55.4% of the Basque Country electorate to abstain from voting. See Idoiaga, supra note 71.Google Scholar

⁷⁵ See C.E., B.O.E. n.3, Dec. 29, 1978 (Spain).Google Scholar

⁷⁶ See Documents on Autonomy and Minority Rights (Hurst Hannum ed., 1993) [hereinafter Documents].Google Scholar

⁷⁷ See C.E., B.O.E. n. 1–3, Dec. 29, 1978 (Spain).Google Scholar

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⁷⁹ Statute of Autonomy of the Basque Country, (L.O.P.J. 1979) (Spain).Google Scholar

⁸⁰ Only fifty-three percent of the population of the Basque Community voted on the referendum for acceptance of the Autonomous Statute, while forty-one percent abstained. See Satisfacción con el Estatuto de Autonomía y evolución futura del mismo, Euskobarometro, (May 2005), http://www.ehu.es/cpvweb/pags_directas/euskobarometroFR.htm; Idoiaga, supra note 71.Google Scholar

⁸¹ An agreement similar to the Statute of Autonomy was approved in 1982 without a referendum in the Navarra, which has different historic links with Spanish monarchy. See Idoiaga, supra note 71.Google Scholar

⁸² The Basques are a very old culture, and they believe that they are one of the original European cultures. The Basque language is one of the few European languages in Europe that does not have Indo-European roots. It is incredibly complicated, and its concentration in Basque Country makes it a basic identity symbol for the Basque people. The Basque Country is very hilly, which helped the Basques to remain relatively isolated from the rest of Europe. Even today, the Basque separatist movement differs from many other ethnic conflicts because it is focused on language rather than religious differences. See Anthony T. Spencer & Stephen M. Croucher, Basque Nationalism and the Spiral of Silence: An Analysis of Public Perceptions of ETA in Spain and France, 137 Int. Comm. Gazette 70 (2008).Google Scholar

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⁸⁴ Id. art. 10.Google Scholar

⁸⁵ Id. art. 11–13.Google Scholar

⁸⁶ Id. art. 17.Google Scholar

⁸⁷ Id. art. 25–33.Google Scholar

⁸⁸ Documents, supra note 76.Google Scholar

⁸⁹ See Statute of Autonomy of the Basque Country art. 40–42 (L.O.P.J. 1979) (Spain).Google Scholar

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⁹² The Basque nationalism in France is supported by a very small group. Only a few rural municipalities are led by Basque nationalists and the movement has no significant political representation at the regional level. The Basque language does not have the status of an official language. The Basque separate identity is reflected through the recognition of Basque culture and language within the institutional framework of France. It is interesting to note that, in the French Basque Country where the political framework provides relatively few opportunities for the political expression of the separate identity, most of the people do not see the Basque identity as active and potentially innovative, in contrast to the much more dynamic environment in Spain. See Zoe Bray, Basque Nationalism at a Political Crossroads, World Politics Review (May 9, 2012).Google Scholar

⁹³ The plan carries the name of the President of the Basque Government who submitted it to the Basque Parliament in 2002 and defended in front of the Spanish Parliament in 2005 as a new political pact for coexistence. See Alberto Lopez Basaguren, The Fundamental Points of the Plan Ibarretxe: The Right to Self-Determination and Example of Quebec, in Fundacionpara la Libertad 41 (2008).Google Scholar

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¹⁰⁰ For a review of potential conditions proposed by different scholars that could give legitimacy of possible secession, see Simon Caney, National Self-Determination and National Secession, Individualist and Communitarian Approaches, in Theories of Secession (Percy B. Lehning ed., 1998).Google Scholar

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¹⁰³ Moreover, if Scotland and Basque Country achieve independence, then every community that wants autonomy will try to follow the same path. For more information, see http://www.dw.com/en/who-else-may-follow-in-scotlands-footsteps/a-17919333.Google Scholar

¹⁰⁴ See Kohli, , supra note 44, at 33.Google Scholar

¹⁰⁵ Will Kymlica discusses the trend of repressive policies of multiculturalism. because states fear for their survival in the geopolitical sense—which Kymlica believes is misplaced, especially with the establishment of NATO and the EU) and because individuals fear being subject to self-governing institutions run by the minority. See Will Kymlica, Multiculturalism: Success, Failure, and the Future (2012).Google Scholar

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