Secession in international law: A critical appraisal

The structural indeterminacy of law and the decisiveness of hegemon / dominant states in international relations are among the main theses of critical international law perspective, and are explanatory contentions on the subject of secession. Structural indeterminacy of law is the thesis that the insoluble contradiction between state sovereignty and the interests of international society largely ambiguates the substance of international law. International law aims both to protect state sovereignty and the order and values of the international society; and this leads to the formation of conflicting rules. Thereby it becomes possible to justify every act with a rule of law; so the law cannot be considered as a receipt the content of which can be determined objectively. The structural indeterminacy of law makes possible for the dominant states to justify every kind of action with law. The law of state formation is in a vicious circle between effectivity-norms-sovereignty. The norms are in a state of insoluble conflict with both the principle of effectivity and state sovereignty. This obscures the content of the law of state formation. International law validates the principle of effectivity and the norms such as the right to self-determination and also the principle of territorial integrity to a certain extent; and this creates a slippery slope. The success of secession depends on the recognition by dominant states. They justify their determinacy on sovereignty formation through law. By referring to different rules and principles, they explain their behaviour on state formation / secession within the frame of law. They are determinative on secession either through different interpretations of law or by means of hegemonic mechanisms. In this context, the break-up of Yugoslavia has been constructed by defining the process as 'dissolution,' and to prevent Kosovo's recognition to establish a precedent, it was declared to be an 'exception.' Palestine indicates how the law of state formation can be manipulated in many respects and also the importance of recognition by Western dominant states. The comparison of Bangladesh-TRNC-Kosovo indicates the different interpretations of the prohibition on the use of foreign military force to achieve secession, and Crimea shows that secession can be justified differently in different situations. South Sudan, as an example where the dominant states had influence to create mother state consent through UN Security Council powers, point out the role of hegemonic mechanisms in relation to secession. Although law is manipulated by the dominant states in the matter of secession / state formation, the relation between people-territory is being legalized pursuant to the relative independency of law, and this militates in favour of sub-state units.