Africa-Press – Namibia. The Namibian government has warned that it will not rule out applying “full force of the law” to crack down on renewed calls to secede the Zambezi Region from the entire territory of the Republic of Namibia.
This is a complex legal issue which has been a subject of much debate throughout the 20th and 21st centuries and has governed a large amount of the changing state relations within this period, particularly during decolonisation. The right to self-determination is still a highly relevant and frequently discussed element of international law. This issue is complicated due to the development of the principle of remedial secession, which was sought to apply the right to secessionist self-determination outside of a colonial context in cases where territorial minority ethnic groups have faced structural discrimination and severe violations of fundamental human rights. But I will come back to that shortly.
Self-determination
The quintessential definition of self-determination is to have control over one’s own life. When applied politically, this relates to the power of the people of a nation to decide how they would prefer to govern themselves. The principle of self-determination is one that has undergone many changes in its political and legal meaning over the last century.
The first international legal case to be heard regarding self-determination was the Aaland Islands case in 1920. The archipelago in the Baltic Sea brought the case to the Council of the League of Nations to enquire whether the citizens of Aaland could assert their self-determination and return from Finland to the Kingdom of Sweden. The Council held that “positive international law does not recognise the right of national groups, such as [them], to separate themselves from the State of which they form part by the expression of wish”. Therefore, the right to self-determination was not considered to amount to a right to secession.
Thereafter, the Charter of the United Nations came into force in 1945, in which Article 1 includes reference to self-determination. This meant, for the first time, self-determination was recognised in an official international legal document, affirming that it was an existing right. Sadly, the lack of definition and details as to what self-determination entails provided in the Charter left little ability for the right to be applied, particularly in relation to secession.
As such, self-determination began to be referred to once more not as a right but simply as a principle, implying its limited applicability outside of colonial situations.
This was only furthered by the development of the customary principle of “uti possidetis”. This in Latin means “as you possess”. It is a principle of international law that dictates that borders of newly independent states should be the same as the administrative boundaries of the territory they inherited from their former colonial rulers. This principle is to preserve stability and prevent disputes over territory after decolonisation.
It was also acknowledged in the Frontier Dispute case that it is “a general principle which logically connects with the phenomenon of independence wherever it occurs”, suggesting the International Court of Justice’s (ICJ) priority outside of colonial circumstances is the preservation of borders, not the application of secessionist self-determination. There are obvious reasons for this limitation of self-determination as a right, as stated by the UN: “If every ethnic, religious or linguistic group claimed statehood, there would be no limit to fragmentation, and peace, security and well-being for all would become even more difficult to achieve.”
Remedial secession
In the case of Loizidou v Turkey, in the European Court of Human Rights (ECtHR), it was held that the right of self-determination through secession would only be available where human rights are consistently and flagrantly violated or if they are without representation at all or are massively under-represented in an undemocratic and discriminatory way. This was also followed in Judge Abdulqawi Yusuf’s (ICJ) opinion in which he cited the requirement of ethnic or racial preservation, denial of access to autonomous government and the exhaustion of all other possible remedies. The new State of Kosovo is the only example of an application of this principle in practice. This also came about after armed actions escalated tensions, leading to a spiral of violence supported by NATO against the State of Serbia from 1989 to 1999.
In summary, the United Nations’ position on secession is complex, influenced by the principle of territorial integrity and the right to self-determination. While the UN affirms both principles, the right to secession, as a form of external self-determination, is generally limited to cases of colonial, foreign, or racist domination. As such, the UN and the international community strongly uphold the principle of territorial integrity of established states. This means the UN are not likely to recognise unilateral secession from a state that is not under foreign occupation or facing significant human rights abuses that prevent them from exercising internal self-determination. Hence, the UN acknowledges the right to self-determination of peoples, but this right is often interpreted as internal self-determination (e.g., autonomy within the state) rather than external self-determination (e.g., secession). As such,
The customary principle of “uti possidetis” serves to protect the boundaries of emerging states from further secession.
In this case, the Namibian Constitution, specifically Article 1, declares Namibia a sovereign, secular, democratic and unitary state. The Constitution provides the overarching legal framework for the nation, ensuring that laws and policies apply equally to all citizens and regions. It has also established a framework based on the principles of constitutionalism, the rule of law, and respect for human rights. Otherwise, every ethnic, religious or linguistic group could claim statehood, and undoubtedly there would be no limit to the balkanisation or fragmentation of the country, and peace, security and stability will be extremely difficult to achieve in the land.
Giving thoughtful attention to all these aspects, one would draw a reasonable inference that self-determination is being referred to once more not as a right but simply as a principle, implying its limited applicability outside of colonial situations. Importantly also, international law does also not recognise the right of national groups to separate themselves from the state of which they form part by the expression of wish. As such, their right to self-determination is not considered to amount to a right to secession.
Source: neweralive
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