




































AQUINNO VOLUME 4 ISSUE 3 DECEMBER 2024.cdr


DOES INTERNATIONAL LAW BAN THE RIGHT TO SELF-DETERMINATION? 
A PHILOSOPHICAL APPRAISAL

CN Ogugua and Ike Odimegwu

Abstract

The right to self-determination (SD) is one of the most contested right today both in international 
law and moral philosophy but especially in international law. This is because the right to SD and 
the right to state sovereignty (SS) are both ambiguously codified in international instruments 
without specification on which of the two should be prioritized when both come into conflict. The 
result is that international lawyers and jurists have defended at least four major theories as the 
correct representation of international law on the right to SD, namely, that international law bans 
the right to SD, international law supports primary right to SD, international law maintains 
remedial right to SD and that international law is neutral on the right to SD. Using both the 
historical and hermeneutical methods, this study interrogates the specific claim that international 
law prohibits the right to SD. After conceding that the jurists and international lawyers who 
advocate this position do so for obvious reasons of international peace and stability, the study 
argues that the position cannot be sustained either legally or morally as it has no specific solid 
support in law and practice and does not meet the basic prerequisites of justice. Above all, the 
study argues contrary to the proponents of the theory, that the theory is not suitable for 
international stability and peace and therefore recommended the need for further study to develop 
a theory that satisfies global need for justice, peace and stability. 

Keywords: self-determination, state sovereignty, secession, international law, peace, stability.

Introduction

The rise in agitations and conflicts of SD across the globe has led to renewed interest among 
international lawyers and jurists on the position of international law on the right to SD. The major 
reason for this renewed interest is that the agitations for SD is in part fueled by the tension 
between the principles of SD and SS in international law. The tension itself is the consequence of 
the imprecise and conflicting codifications of the two principles in international protocols.

For instance, SD and SS are both codified as fundamental principles of jus cogens (peremptory 
norm”) and erga omnes in international law. On the one hand, SD is a cardinal principle in modern 
international law, binding, as such, on the “United Nations [UN] as an authoritative interpretation  
of the  norms” (McWhinney, 2007, p. 8). Charter's  the very first article of the UN In fact, as early as
Charter (1945, 1(2)), it is stated that one of the purposes of the UN is “to develop friendly relations 
among nations based on respect for the principle of equal rights and self-determination of 

 
peoples.”Thus, SD is not just a human right, “It is the fundamental human right from which every 
other human rights is derived and to protect it is the very aim and purpose of the United Nations” 

 
(Zayas, 2014, para. 15).As such, there is an international consensus that the principle of and the 

 right to SD have become jus cogens and applicable erga omness (para. 15).In Article 1 (2) of the 
UN Charter, SD is a measure to strengthen universal peace. And SD as “a cornerstone of peace” 
and as “a vector of peace” is as well claimed by the UN independent expert Alfred-Maurice de 
Zayas (para. 15).

On the other hand, opposed to SD but codified as well in both the UN Charter and other 
international instruments is SS. SS, for the past several hundred years is recognized as the 
defining principle of interstate relations and a foundation of world order. The concept:

151

https://en.wikipedia.org/wiki/International_law
https://en.wikipedia.org/wiki/Charter_of_the_United_Nations


Lies at the heart of both customary international law and the United Nations 
Charter and remains both an essential component of the maintenance of 
international peace and security and defense of weak states against the strong 
(Chesterman, 2001, p. 13).

The sentiment of defending weak states against the strong was captured by Algerian President 
Boueteflika, who, as President of the Organization of African Unity (OAU), addressed the UN 
General Assembly (UNGA) in 1999, immediately after the Secretary-General (SG), and called 
sovereignty “our final defense against the rules of an unjust world” (Tharoor and Daws, 2001, p. 
25). Article 2(7) of the UN Charter states that “nothing contained in the present Charter shall  
authorize the United Nations to intervene in matters which are essentially within the domestic 
jurisdiction of any state or shall require the Members to submit such matters to settlement under 
the present Charter.” 

Therefore, the nucleus of the conflict between the principles of SD and SS is not just that one 
principle logically cancels what the other proposes but principally that both are codified and 
opposed to each other in international instruments.  many ways, the debate around the  Thus, in
right to SD is the result of the clash between the Charter's definitive Articles 2(7) and 2(4), which 
respects the exclusive and overriding sovereignty of a state over its internal affairs, and the human 
rights agenda and laws developed subsequently, which erode the sovereignty of the state. The 
result of this contradictory codifications is that in conflicts of SD, both the rump state and the 
secessionist group use the same instruments to mobilize and justify their actions. For instance, in 
Nigeria, both the Federal Government of Nigeria (FGN) and Indigenous People of Biafra (IPOB) 
use international law to defend the inviolability of SS and SD respectively.

In the bid to resolve this tension and by extension influence international policies on conflict of 
SD, international lawyers and jurists have proposed four competing theories delineating the 
position of international law on the question of the right to SD: international law is opposed to the 
right to SD; international law supports primary right to SD; maintains remedial right to SD and 
international law is neutral on the right to SD.  Using the historical and hermeneutical methods, 
this study interrogates the specific claim that international law bans the right to SD. After 
conceding that the jurists and international lawyers who advocate this position do so for obvious 
reasons of maintaining international peace and stability, the study argues that the theory cannot be 
sustained legally and morally as it has no specific and solid support both in law and practice and 
does not meet the basic requirements of justice. Above all, the study argues contrary to the belief 
of the theory's advocate, that the theory is not suitable for international stability and peace and 
therefore recommended further studies to develop a theory and framework that meet the global 
need for peace and stability. 

 The study is divided into five parts. The introductory part clarifies the problem and purpose of the 
study outlining the procedure for achieving them. The second part conceptualizes the concept of 
secession, SD and SS. In third part the theory that SD is prohibited in international law is 
presented and discussed. Using the criteria of international practice, judicial precedence, 
scholarly opinion and moral consistency the study tries to expose the vacuity of the theory in the 
fourth part. The fifth and final part is the conclusion and recommendation. This part, argues 
contrary to the theory's advocates, that it is not suitable for international stability and peace and 
therefore recommended the formulation and promotion of a theory that promotes global stability 
and peace. 

152

                                            Aquino Journal of Philosophy, Vol 4 Issue 3, December 2024.
ISSN: 2786-9792



Clarification of Concepts

Self-determination

Self-determination is a very complex concept. However, the various strands of meanings in the 
concept will not be explored here. Our purpose is strictly to operationalize the concept for use in 
this study. Hence, Toft (2012, p. 584) defines SD by claiming that “one can understand self-
determination as the notion that ethnic groups have the right to determine their own fate, either by 
opting for a degree of autonomy within the borders of an undivided state, or by seceding. Thus, 
there are two types of SD, internal and external SD. While internal SD is the quest of a group 
fighting for greater autonomy within a country, external SD refers to the right and demand of 
those who want to form their own country or merge with another country. In international law, 
there is broad consensus on the meaning and existence of the right to internal SD. What is 
contested is the existence of external SD and that is the version of SD that this research is 
interested in.

Secession

Secession is the act of breaking away from a rump state to form a new state or to join another state. 
In this regard, secession is a form of external SD and the two terms are almost always used 
interchangeably in literature. This study will follow the same pattern. Nevertheless, there is still a 
tacit difference between secession and external SD. Whereas SD is the right of a people to pursue 
their political future, secession is the attempt to realize that right through complete withdrawal 

 from the parent state (Raymond, 2014). Therefore, while all successful SD does not lead to the 
breakup of states, all successful secessions result in the breakup of states. On the whole, 
Secession and SD are used interchangeably in this study.

State Sovereignty

According to Academic American Encyclopedia (1981), SS refers both to “the supreme powers 
exercised by a state over its own members”, and “the powers exercised by an autonomous state in 
relation to other countries.” Based on these two aspects, SS is usually said to have both internal 
and external dimensions. According to  (2024) internally, SS is “the Encyclopedia Britannica

 ultimate authority in the decision-making process of the state and in the maintenance of order.”
Externally, SS refers to full legal equality with other states and the freedom from any external 
control with regard to the independent rights of the state to enter into transaction with other states. 
Specifically, and most importantly, SS immunizes the state from balkanization by both internal 
and external actors (Malcolm, 2014, p. 12). Therefore, as seen above, the conflict between the two 
principles is that what one (SD) approves (breaking up of a state) the other (SS) opposes.

International Law Bans the Right to Self-Determination

This theory claims that international law prohibits SD or that SD was only legal in international 
law during decolonization. After decolonization, every attempt to balkanize a sovereign state is 
illegal in international law. This claim was elucidated by Pei-Ling Hu (2014, p. 3):

Many post-1945 examples of movements of [SD] especially those unilateral and 
outside of the context of decolonization—the only UN practice where [SD] 
achieved the stature of an applicable legal right—are largely contested and gain 
little recognition or support from the world community and the UN. Therefore, 
post-colonial secession is significant because, while the first introduction of the 
right of [SD] in the international law set it up as a universal right for all 'peoples,' 
it is only practiced as a binding, legal right in the context of decolonization.

He added also:

From this perspective, for the UN, the right of [SD] of 'peoples' only constitutes a 
right under the context and condition of decolonization. Outside of this colonial 

153

CN Ogugua And Ike Odimegwu                                   Does International Law Ban The Right...



context, throughout the past decades, the UN has largely blocked the 
establishment of every new state especially in the previously colonial world, 
arguing that these demands for [SD] are 'redundant' as such right has already been 
addressed in the process of decolonization. The UN reacted to post-
decolonization secessionist movements either with active military intervention in 
a separatist conflict (for example, in the Katanga vs. Congo case), or with passive 
denial of the breakaway nation's nationhood, thus withholding any international 
recognition to the new state and effectively rendering the independence invalid 
(for example, in the Biafra vs. Nigeria case) (p. 6).

In view of these claims, Joshua Castellino (2011, p. 18) remarks that “[SD] was thus viewed as the 
 concept that exclusively freed people from 'salt-water' colonialism.” Similarly, Paković and 

Radan (2007, p. 22) also conclude that in this right of SD sanctioned to colonial countries, there is 
a general insistence that “newly independent states inherited the territories and borders of the 
former colonial entities from which they emerged.” Secessions that are outside of the specific 
colonial setting or that threaten to break down colonial borders are generally not considered 
legitimate, or legal, under international law. The right of SD of the “people” seeking postcolonial 
secession is not considered one of the inalienable “human rights” that “derive from the inherent 
dignity of the human person”, or a right “of all peoples, and of universal respect for, and 
observance of, human rights and fundamental freedoms for all without distinction as to race, sex, 
language or religion (1960 Declaration)” (Pei-Ling Hu, 2014, p. 3).

This theory is defended on four premises. Premise one, argues that secession is not mentioned in 
any international document and hence is considered illegal by international law. On this account, 
the various places SD is mentioned in international protocols outside decolonization are taken to 
mean internal SD and thus, cannot be used to justify postcolonial secession. Majority of 
international lawyers and jurists who hold this opinion start by making a distinction between 
internal and external SD and identifying SD with the former and secession with the later.  From 
this position, they go ahead to claim that there is no recognition of a right to secede in international 

 
law (Christakis, 2011, p. 77).Tancredi (2014, p. 80) has on this ground argued that the exercise of 
an external right to SD is confined to processes of decolonization. The argument he used to 
support this claim is that the word secession did not appear in any international legal document, 
including the UN Charter. The initial effort to include secession in the Charter was rejected by the 
drafters:

In fact, although it was debated during the preparatory sessions preceding 
adoption during the San Francisco Conference, the term 'secession' in the end did 
not figure in the text of the UN Charter as a clear expression of the decision taken 
by the drafters (p. 82).

After acknowledging that Art. 1 of the UN Charter can be interpreted as authorizing the right to 
secession, Tancredi bluntly rejects such reading insisting that it is not possible to conclude that the 
right to secede is reflected in the text of the original precept.

Secondly, in many ways, the claim that international law bans secession centres on the provisions 
of articles 2(4) and 2(27) of the UN-Charter which respect the exclusive and overriding 
sovereignty of a state over its internal affairs. Article 2(4) on Prohibition of threat or the use of 
force in international law asserts that:

All Members shall refrain in their international relations from the threat or use of 
force against the territorial integrity or political independence of any state, or in 
any other manner inconsistent with the Purposes of the United Nations.

And Article 2(7) of the “Purposes and Principles” of the Charter of the UN states that:

154

                                            Aquino Journal of Philosophy, Vol 4 Issue 3, December 2024.
ISSN: 2786-9792



…nothing contained in the present Charter shall authorize the United Nations to 
intervene in matters which are essentially within the domestic jurisdiction of any 
state or shall require the Members to submit such matters to settlement under the 
present Charter.

It is argued that under these provisions, the deciding factor in the UN's (and/or its members') 
involvement in any secessionist movement depends on whether the matter is considered 
domestic or international affairs. A secessionist war that takes place on the territory of a 
recognized nation-state is only considered an international affair if the aggression on either side 
amounts to the degree of genocide—an international crime against humanity—or if the unrest 
spills over the borders of the affected state, hence violating its neighboring states' right to 
territorial sovereignty and affecting international peace and security, the most common example 
of this being the refugee problem. Other than these few exceptions, the international community 
typically upholds Article 2(7) over any other international or human rights law. As the 
determination of genocide proves to be anything but clear-cut despite the signing of the Genocide 
Convention in 1948, and as the refugee problem generally receives more humanitarian 
response—emergency reliefs operated by UNHCR, for example—than military action directly 
addressing the secession conflict, in most unilateral, post-decolonization secessionist war the UN 
silently gives the host government its legal license to carry out “police action” targeting part of its 
own people (Pei-Ling Hu, 2014, p. 9).

The third claim is based on the provision of the various UN instruments where SD is not only 
restricted by but also trumped by SS. A typical example of this is the UN Charter itself where after 
declaring in Article 1(2) that one of the purposes of the UN is “to develop friendly relations 
among nations based on respect for the principle of equal rights and [SD] of peoples”, article 2(7) 
quickly interjects that “nothing contained in the present Charter shall authorize the [UN] to 
intervene in matters which are essentially within the domestic jurisdiction of any state or shall 
require the Members to submit such matters to settlement under the present Charter.”  

Another important document usually cited in this regards is the Declaration on the Granting of 
Independence to Colonial Countries and Peoples in 1960, where the declaration of article 2 that 
“all peoples have the right to [SD]; by virtue of that right they freely determine their political 
status and freely pursue their economic, social and cultural development,” was counterbalanced 
by Clause 6 which emphasizes that “any attempt aimed at the partial or total disruption of the 
national unity and the territorial integrity of a country is incompatible with the purposes and 
principles of the Charter of the [UN].” The contention therefore is that international law has 
always prioritized SD over SS.

The fourth argument is based on the history of secession. It is claimed that since the formation of 
the UN in 1945, no country has gained independence through post-colonial unilateral secession. 
In this context, James Crawford makes the observation that “since 1945 the international 
community has been extremely reluctant to accept unilateral secession of parts of independent 
States if the secession is opposed by the government of that State” and that “since 1945 no State 
which has been created by unilateral secession has been admitted to the [UN] against the declared 

 
wishes of the government of the predecessor State” (Crawford, 2006, p. 390).  Crawford lists all 
cases of secession and dismemberment after 1945 in non-colonial context here to demonstrate 
this claim: 

Since 1945, the only new states emerging from situations which were not formally 
recognized as colonial, i.e. as covered by Chapters XI or XII of the Charter, have 
been: Senegal (1960); Singapore (1965); Bangladesh (1971); the three Baltic 
States: Latvia, Lithuania, Estonia (all 1991); the eleven successor States of the 
former Soviet Union: Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, 

155

CN Ogugua And Ike Odimegwu                                   Does International Law Ban The Right...



Kirgizstan, Moldova, Tajikistan, Turkmenistan, Ukraine, Uzbekistan (all 1991) the 
five successor States of the former Yugoslavia: Slovenia, Macedonia, Croatia, 
Bosnia-Herzegovina, Federal Republic of Yugoslavia (Serbia and Montenegro) 
(1991- 2); Czech Republic and Slovakia (1993); and Eritrea (1993) (p. 391).

Similar point was made by Vidmar (2015, p. 370) who argues that the fact that international law 
prohibit secession outside the context of decolonization is evident in customary international law 
since 1945. He notes that while 28 new States have emerged outside any decolonization process 
since 1945, cases such as Senegal (1960), Singapore (1965), Eritrea (1993) and South Sudan 
(2011) involved consent between the parties concerned prior to independence. In other instances, 
for example the Baltic States, Latvia, Lithuania and Estonia (1991), it was a question more of the 
re-emergence of States, since they recovered the independence that had earlier been seized from 
them. In yet other cases there were states that came into being as a consequence of the collapse of 
communism: Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kirgizstan, Moldova, 
Tajikistan, Turkmenistan, the Ukraine and Uzbekistan emerging from the former Soviet Union in 
1991; Slovenia, Macedonia, Croatia, Bosnia-Herzegovina, Federal Republic of Yugoslavia 
(FRY), that arose from the former Yugoslavia in 1991 and 1992, followed in 2006 by 
Montenegro; and the former Czechoslovakia, which split into the Czech Republic and Slovakia 
in 1993. In reality, in international practice there are only the cases of Bangladesh (1971) and 
Kosovo (2008) that are new States arising as the result of a process of unilateral secession. In view 
of this, Vidmar concludes that the recognition of a right to secession in international law by the 
international community would hence not appear to find the necessary and sufficient precedents 
in reality.

Vidmar view would be reinforced by the occurrence of cases like those also cited by James 
Crawford: Tibet (China, 1959), Katanga (Congo, 1960), Biafra (Nigeria, 1967), Kashmir (India, 
1987), East Punjab (India, 1970), the Karen and Shan States (Burma, 1949 and 1960), the Turkish 
Federated State of Cyprus (Cyprus, 1975), Tamil Eelam (Sri Lanka, 1983), Bougainville (Papua 
New Guinea, 1990), Somaliland (Somalia, 1991), Kosovo (FRY, 1991), Chechnya (Russia, 
1991), Nagorno-Karabakh (Azerbaijan, 1991), Kurdistan (Iraq/Turkey, 1992), Republika Srpska 
(Bosnia-Herzegovina, 1992), Abkhazia (Georgia, 1992), South Ossetia (Georgia, 1992), the 
Democratic Republic of Yemen (Yemen, 1994), and more recently Crimea. In all these the 
attempts at secession by groups or territories within an independent State, according to Crawford 
failed to gain recognition as new States from the international community (Crawford, 1998, p. 
105). Therefore, for the proponents of this theory as clearly represented by Peters, if there is no 
recognition for a right to secede, then secession is not permitted, in other words, it is prohibited by 
international law. Some comment, in addition, that this is so because there is a presumption in 
favour of stability, rather than an acceptance of secession (Peters, 2011, p. 99).

Appraisal of the Theory that Self-Determination is banned in International Law 

As stated above, this section will examine the claim that SD is prohibited in international law 
from both moral and legal perspectives. Morally, two objections are raised against the theory: 
objection from human right and objection from justice. Legally, two objections are also raised 
against the theory: objection from international practice and objection from judicial precedence.

Moral Objections

Objection from Human Rights 

The most important moral objection against this theory is that the claim that international law 
bans SD treats SD as a territorial rather than a human right as provided by many international and 
regional instruments. These international provisions make the claim of international ban on SD 

156

                                            Aquino Journal of Philosophy, Vol 4 Issue 3, December 2024.
ISSN: 2786-9792



arbitrary since human rights inheres on persons and cannot be banned. For instance, following the 
1960 Declaration, in 1966 the UN adopted International Covenant on Civil and Political Rights 
(ICCPR), as one of the documents under the International Covenants on Human Rights, which, 
though not binding, officially viewed SD not only as a human right, but the first and fundamental 
human right. It states that it recognizes “the inherent dignity and the equal and inalienable rights 
of all members of the human family is the foundation of freedom, justice and peace in the world” 
and also enshrines the right of [SD] in its very first Article with the same words: 

All peoples have the right of [SD]. By virtue of that right they freely determine 
their political status and freely pursue their economic, social and cultural 
development (Art. 1(1)).

Joshua Castellino and Jérémie Gilbert (2003, p. 155) are therefore right to point out that shortly 
after the establishment of the UN, with the drafting and adopting of these documents concerning 
basic human rights, the UN has made the right to SD “essential before any other rights can be 
recognized.”

This message resurfaced again in the Vienna Declaration of 1993 adopted by the World 
Conference on Human Rights. The Declaration states in its first Article that “human rights and 
fundamental freedoms are the birth right of all human beings; their protection and promotion is 
the first responsibility of Governments,” and then in its second Article, when affirming that the 
denial of the right of SD is a violation of human rights, it states:

In accordance with the Declaration on Principles of International Law concerning 
Friendly Relations and Cooperation Among States in accordance with the Charter 
of the [UN], this shall not be construed as authorizing or encouraging any action 
which would dismember or impair, totally or in part, the territorial integrity or 
political unity of sovereign and independent States conducting themselves in 
compliance with the principle of equal rights and [SD] of peoples and thus 
possessed of a Government representing the whole people belonging to the 
territory without distinction of any kind.

The proponents of the ban on SD are yet to provide evidence of what changed in human nature 
that made colonial people to have the right to SD while post-colonial people do not. 

Objection from Justice

This second objection derives directly from the first objection on human right. The objection 
questions the justice of ascribing the right to SD to colonial people who were treated unfairly why 
denying the same right to post-colonial people who live under the same condition of unfair 
treatment. For instance, one searches in vain to find the grounds upon which SD which is a human 
right can be justified for people living under colonial domination but denied to post-colonial 
people. Why is SD good for African living under colonial rule but not good for Africans in post-
colonial time who still live under similar conditions? Therefore, it is argued that if SD is a human 
right, it does not appear reasonable to say that colonial people have it why non-colonial people do 
not.

This refutation was made by Lee Buchheit who while acknowledging that many jurists and 
international lawyers often seem to favour SS over SD under the claim that the principle of SD 
was originally intended to apply only to colonized peoples and territories. However, Buchheit 
points out that even if this interpretation is correct, it does not mean that it could not plausibly be 
extended to apply to secessionist claims. His reasons is that the situation of some national 
minorities in existing multinational states is strikingly similar to that of colonized peoples under 
alien rule prior to decolonization: “domination by a foreign government, lack of political 
autonomy, economic exploitation, and human rights violations.” If this is the case, it is unclear 

157

CN Ogugua And Ike Odimegwu                                   Does International Law Ban The Right...



why such minorities should not be able to invoke the principle of SD to free themselves from such 
rule. As Buchheit (1978, pp. 17-18) puts it:

One searches in vain for any principled justification of why a colonial people 
wishing to cast off the domination of its governors have every moral and legal 
right to do so, but a manifestly distinguishable minority which happens to find 
itself, pursuant to a paragraph in some medieval territorial settlement or through a 
fiat of the cartographers, annexed to an independent State must forever remain 
without the scope of the principle of [SD]. International law is thus asked to 
perceive a distinction between the historical subjugation of an alien population 
living in a different part of the globe and the historical subjugation of an alien 
population living on a piece of land abutting that of its oppressors. The former can 
apparently never be legitimated by the mere passage of time, whereas the latter is 
eventually transformed into a protected status quo.

Thus, while it is understandable that the restricted use of the principle of SD endorsed by some 
legal scholars is motivated mainly by the fear of the chaos and violence that would likely ensue 
were every secessionist claims are satisfied, this fear should not lead to the outright claim that 
secession is prohibited in international law. 

Legal Objections

Objection from Judicial Precedence

While scholars have used a number of judicial precedence to make case for non-prohibition of the 
right to SD in international law, the landmark case that connects all the cases together is the 
Advisory Opinion (AO) of the International Criminal Court (ICJ) on the legality of the 
declaration of independence by Kosovo. On 8 October 2008, through Resolution 63/3, the UNGA 
issued a request for an AO to the ICJ. Serbia through this Resolution sought to have the court's 
opinion on whether the declaration was in breach of international law and also to reopen the 
negotiating process for determining the future of Kosovo. The question was framed as follows:

 Is the unilateral declaration of independence by the Provisional Institutions of 
Self-Government of Kosovo in accordance with international law? The 
question that the GA posed to the ICJ was to assess the accordance of the 
declaration of independence of 17 February 2008 with international law 
(Resolution, 63/3, 2008).

To address the question, the ICJ underlines the substantial relevance of the principle of territorial 
integrity in international law and interprets its subjective scope using as a basis two relevant texts: 
the GA resolution 2625 (XXV) of 1970 and the Final Act of the Helsinki of 1 August 1975. The 
conclusion of the ICJ (2010, p. 80) is that “The scope of the principle of territorial integrity is 

 
confined to the sphere of relations between States.” The interpretation of the Court is held as 
balanced on the basis of the traditional view that international law remains neutral in regard to 
secession (Christakis, 2011, p. 82). Upholding the strictly inter-sate character of the territorial 
integrity principle, the Court refused to challenge the “legal neutrality” thesis (Corten, 2011, p. 
89). The answer to that question turns on whether or not the international law prohibited the 
declaration of independence. The Court chose to focus its answer in terms of non-violation. 
Taking this less demanding approach, it declares that the declaration did not violate any 
applicable rule of international law. In order words, it will be preposterous to go contrary to the 
ruling of the highest judicial organ in the UN and say that international law prohibits SD.

Objection from International law and Practice 

Another strong objection against the claim that international law prohibits SD is that such claim 

158

                                            Aquino Journal of Philosophy, Vol 4 Issue 3, December 2024.
ISSN: 2786-9792



has no specific support in international law and practices. For instance, nowhere in international 
law is it clearly stated that secession or SD is prohibited. The general references usually made by 
scholars to articles 2(4) and 2(7) of the UN Charter and the so called safeguard clause in para. 6 of 
the 1970 Declaration on Friendly Relations (UNGAR, 2625), in no way specifically outlawed or 
specifically stated that SD is illegal in international law. Specifically, the safeguard clause states 
that:

Nothing in the foregoing paragraph shall be construed as authorizing or encouraging 
any action which would dismember or impair, totally or in part, the territorial integrity or 
political unity of sovereign and independent States conducting themselves in 
compliance with the principle of equal rights and [SD] of peoples as described 
above and thus possessed of a government representing the whole people belonging 
to the territory without distinction as to race, creed or colour. Every state shall 
refrain from any action aimed at the partial or total disruption of the national unity and 
territorial integrity of any other state or country.

While this paragraph clearly states that SS is sacred and protected by international law, it does not 
in any way state that SD is prohibited. Rather it implies that SD trumps SS for states who do not 
conduct themselves in compliance with the principle of equal rights and SD of peoples and 
possess a government that represents the whole people.

Also, although, there has been many failures of attempted SD since the UN Charter came into 
force in 1945, there has also been few successful ones that at least passed through the auspices and 
recognition of the UN such as Bangladesh, Kosovo and South Sudan. These though few, are 
indications that it will be difficult to justify the claim that there is general prohibition of SD in 
international law.

Evaluation and Conclusion

From the foregoing, it appears that there is no basis both in international law and moral 
philosophy to legitimize the argument that international law prohibits the right to SD. What is 
somewhat obvious is that scholars who propound this argument do so as a policy wish and then 
scout for international legal backing to support their policy proposition. Their aim as hinted above 
is that they feel that SD expressed in the form of secession is globally destabilizing and therefore 
dangerous for peace. Hence, they propose prohibiting SD as a way of maintaining global stability 

In this regards, Christakis (2011, p. 80) reasons that the recognition of a right to secede would be 
dangerous for any State with racial, linguistic, political or religious minorities. Furthermore, he 
claimed that it would lead to a progressive fragmentation of the international community through 

 
the creation of numerous unviable mini-states. Moreover, Higgins (1993, p. 35) maintains that 
each new State might incorporate a minority that would in its turn seek a new secession thereby 

 disrupting global peace and stability.Similarly, Heraclides (1991, p. 28) claims that there would 
be a negative effect for democratic States in which any minorities would always have the 

 opportunity of blackmailing the majority by threatening to secede if its wishes were not satisfied.
Therefore, the argument that international law bans SD is more or less a peace theory and hence, 
stands or falls on its ability to guarantee peace and this raises the question, will banning secession 
make the world more or less peaceful? 

This question has been addressed by a number of scholars. Akpan (2016) for instance argues that 
secession is a fact of life that will occur irrespective of whether it is prohibited or not in 
international law. According to him, saying that international law bans SD does not stop it from 
happening rather it takes it away from the ambiance of law where it can be regulated and makes it 
a question of power which is the reason it has become the greatest source of violence in modern 

159

CN Ogugua And Ike Odimegwu                                   Does International Law Ban The Right...



times. In other words, prohibiting secession rather than discouraging it orients it towards 
violence, makes it more dangerous and therefore unsuitable for international peace.

Similarly, noted that the world community of states has almost tripled Caterina Malavolti (2016) 
between 1945 and 2012, meaning that nearly two new secessions occurred yearly. According to 
her, therefore:

What normative moral theories do not consider is that there will always be 
separatist movements and ultimately secessions are likely to occur anyway, even 
illegally. The need to morally justify secession is trumped by the necessity of 
domesticating separatist claims while avoiding violence and political instability. 
Therefore, we should adopt a pragmatist approach and focus on the procedures that 
ought to be established to control what appears to be an inevitable phenomenon. 

As Miljenko Antić (2007, p. 153) suggests, the appropriate question is not whether secession 
should be allowed, but under which conditions and which procedures should be set to handle it in 
the most peaceful and effective way. 

It is obvious therefore that banning the right to SD is a risk to international peace and stability. 
Even if peace and stability of borders were guaranteed, it would not be just peace, since this would 
not be “peace by satisfaction”, but “peace by power” or, more precisely, “peace by impotence” 
which as seen above is not peace at all. President Wilson (1927, p. 244), the widely acclaimed 
author of the modern concept of SD believed that the prevention of future wars was linked to the 
establishment of a just peace, peace founded on respect for the principle of SD. An “imperative 
principle of action, which statesmen will henceforth ignore at their peril”, he warned. Therefore, 
while the debate on whether or not, the right to SD is prohibited in international law is important 
and commendable, the more important question should be, what moral theories and legal 
framework should be set to help the international community handle SD most peacefully and 
effectively. This study recommends further studies in this direction.

REFERENCES
Academic American Encyclopaedia. (1981). New Jersey: Arete Publishing Company, Inc.
Aleksandar P. and Radan, P. (2007). Creating New States. Surrey, UK and Burlington, VT: 

Ashgate Publishing Limited.
Buchheit, L. C. (1978). Secession: The Legitimacy of Self-Determination. New Haven: Yale 

University Press.
Akpan, A. (2016). “Neo-Biafra Agitation, Nigeria's Territorial Integrity and the Right of Self 

Determinat ion  in  In te rna t iona l  Law.”  Theniger ia lawyers ,  May 28 ,  
http://thenigerianlawyer.com (Accessed, 30/03/2023).

Antić, M. (2007). Procedure for Secession, Politička misao, Vol. XLIV, (2007.), pp. 145–159
Castellino, J. 	 (2011). “The UN Principle of Self-Determination and Secession from 

Decolonized States; Katanga and Biafra” in The Ashgate Research Companion to 
Secession, Aleksandar Paković and Peter Radan ed, Burlington, VT: Ashgate, pp. 102-125.

Castellino, J. and Jérémie G. (2003). “Self-Determination, Indigenous Peoples and Minorities.” 
Macquarie Law Journal 3, pp. 155-178.

Corten, O. (2011). “Territorial Integrity Narrowly Interpreted: Reasserting the Classical Inter-
State Paradigm of International Law.” Leiden Journal of International Law 24 (2011):  87-
94.

Charter of the United Nations. (1945). 24 October.
Chesterman, S. (2001), Just War or Just Peace? Humanitarian Intervention and International Law 

(New York: Oxford University Press).
Christakis, T. 	 (2011). “The ICJ Advisory Opinion on Kosovo: Has International Law Something 

160

                                            Aquino Journal of Philosophy, Vol 4 Issue 3, December 2024.
ISSN: 2786-9792

http://thenigerianlawyer.com


to Say about Secession?” Leiden Journal of International Law 24(1), pp. 73-86.
Crawford, J. (2006). The Creation of States in International Law (2nd ed., OUP).
Crawford, J. 	 (1998). State Practice and International Law in Relation to Secession. BYIL 

69(1), (1998), pp. 65-117.
Declaration on Principles of International Law Concerning Friendly Relations and Co-operation 

Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625, U.N. 
thGAOR, 25  Sess., Supp. No. 18, at 340-43, U.N. Doc. A/8018 (1970).

Encyclopedia Britannica, “Sovereignty”, 2024,  https://www.britannica.com/topic/sovereignty
(Accessed, 15/10/2024)

Higgins, H. 	 (1993). Postmodern Tribalism and the Right to Secession. In Peoples and 
Minorities in International Law, ed. C. Brolmann, R. Lefeber, and M. Zieck, 29–35. 
Dordrecht: Martinus Nijhoff, pp. 29-35	

International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 11, Can TS 
1976 No 47 (entered into force 23 March 1976).

International Court of Justice (ICJ), 	 Accordance with International Law of the Unilateral 
Declaration of Independence in Respect of Kosovo (Advisory Opinion), General List No. 
141, 22 July 2010.

Malcolm, S. N. (2014). International Law, 7th Edition (Cambridge: Cambridge University 
Press).

McWhinney, Edward (2007),  Self-Determination of Peoples and Plural-Ethnic States in 
Contemporary International Law: Failed States, Nation-Building and the Alternative, 
Federal Option (Martinus Nijhoff Publisher). 

Malavolti, C. (2016). The right to secession in modern constitutionalism: a case study of separatist 
movements in Quebec, Scotland, and Catalonia https://www.academia.edu/14067607/  
(Accessed, 15/10/2024)

Pei-Ling Hu. (2014). “Post-Decolonization Secession: The Right of Self-Determination and The 
Nation-State In Contemporary Postcolonial/World Literature”, A dissertation submitted to 
the State University of New Jersey In partial fulfilment of the requirements For the degree 
of Doctor of Philosophy Graduate Program in Literatures in English.

Peters, Ann.  (2011).	 Does Kosovo Lie in the Lotus-Land of Freedom? LJIL 24, pp. 95–108.
Resolution 63/3 of the General Assembly, 8 October 2008. A/RES/63/3 Sixty-third session
Richmond, M. (2014). “Balancing the Rights of Sovereign States with Those of Secessionist 

Movements” E-International Relations, Oct, 26 2014, pp. 1-10 https://www.e-
ir.info/2014/10/26/balancing-the-rights-of-sovereign-states-with-those-of-secessionist-
movements/ (Accessed, 20/04/2023). 

Tanchridi, A. (2014). Secession and the Use of Force. In Self-Determination and Secession in 
International Law, ed. C. Walter et al., (Oxford: Oxford University Press), pp. 68-94.

Tharoor Shashi and Daws, Sam, (2001), “Humanitarian Intervention: Getting Past the Reefs,” 
World Policy Journal XVIII, 18(2), pp. 15-36.

Toft, M. D. (2012). “Self-determination, secession, and civil war”, in Terrorism and Political 
Violence 24(4), pp. 581-600.

The Vienna Declaration and Programme of Action, U.N. Doc. AICONF.157/24 Reprinted In 
WORLD Conference On Human Rights: The Vienna Declaration and Programme of 
Action 25 (1993).

Vidmar, J. 	 The Annexation of Crimea and the Boundaries of the Will of the People. German 
LJ 16 (3), (2015), pp. 365-38

Wilson. W. 	 The Public Papers of Woodrow Wilson, War and Peace, Baker & Dodd (Eds.,) (O: 
OUP, 1927). 

Zayas, A. M. (2014), “Promotion of a Democratic and Equitable International Order”, Report to 
the UN General Assembly (A/69/272).

161

CN Ogugua And Ike Odimegwu                                   Does International Law Ban The Right...

https://www.britannica.com/topic/sovereignty
https://en.wikipedia.org/wiki/Edward_McWhinney
https://www.academia.edu/14067607/The_right_to_secession_in_modern_constitutionalism_a_case_study_of_separatist_movements_in_Quebec_Scotland_and_Catalonia
https://www.academia.edu/14067607/The_right_to_secession_in_modern_constitutionalism_a_case_study_of_separatist_movements_in_Quebec_Scotland_and_Catalonia
https://www.academia.edu/14067607/
https://www.e-ir.info/2014/10/26/balancing-the-rights-of-sovereign-states-with-those-of-secessionist-movements/
https://www.e-ir.info/2014/10/26/balancing-the-rights-of-sovereign-states-with-those-of-secessionist-movements/
https://www.e-ir.info/2014/10/26/balancing-the-rights-of-sovereign-states-with-those-of-secessionist-movements/

