Non-Consensual Secession and The Law of Nations: The Contested Legal Scholarship on the Law of Self-Determination, Recognition and Statehood in International Law
The conventional legal scholarship on the law of self-determination, recognition and statehood in international law makes five arguments. First, although the concept of statehood has not been satisfactorily defined, statehood has been governed by international law in several key aspects. Second, the right to self-determination has become a well-established right under international law, and the creation of the majority of states in contemporary international law, particularly in the UN era, was the result of the application of the right to self-determination. As a consequence of the recognition of the right to self-determination, no state can be created in violation of this right. Third, international law is a coherent system, especially when considering concepts such as recognition and statehood. Fourth, the recognition of a new state is declaratory, and the constitutive doctrine of recognition is unsound. Fifth, secession as a usual method of state creation is not regulated by international law. This thesis investigates the legal evolution of the right to self-determination in terms of non-consensual secession and examines the relationship between self-determination, recognition and statehood. In contrast to conventional legal scholarship, this thesis first argues that the creation of states is largely left unregulated and uncodified by international law. Second, although many contested cases can be theoretically formulated and justified under the doctrine of self-determination in international law, in practice, self-determination has played a minor role in the creation and recognition of new states in contemporary international law. Third, rather than being a coherent system, international law is actually a primitive and undeveloped system of law, especially when it comes to concepts such as self-determination, secession, recognition and statehood. Fourth, the thesis adheres to the constitutive doctrine of recognition and maintains that any entity that is seeking statehood can lawfully form its own state through an act of non-consensual secession, regardless of whether it is entitled to the right to self-determination, as long as it is recognised by other members of the international community of states. Fifth, only by accepting the previous points would it be logical to argue that secession as a usual method of state creation is largely unregulated by international law, and the success of the creation of a new state in international law is directly dependent on recognition by the international community of states, which in our time is reflected in the institution called the United Nations. Thus, the main argument of this thesis is that contrary to conventional legal wisdom, self-determination, as codified under UN instruments, is insufficient for the achievement of statehood and plays minimal to no role in the process of creating new states. Instead, it is recognition that is material and constitutive of the legal personality of a new state.
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