Dr Blerim Mustafa, Head of the Unit at the Organisation of Southern Cooperation. PhD, School of Politics and International Relations, University of Leicester.

Cite: Blerim Mustafa, How should states address post-Cold War separatist conflicts?, Global South Network Blogs, 28 August, 2023. https://globalsouthnetwork.com/how-should-states-address-post-cold-war-separatist-conflicts/

The right of self-determination represents an expression of every people’s democratic right to self-government.  Its timely promotion and realization are a vital conflict-prevention strategy that can defuse political tensions by eliminating internalised oppression. Its relevance did not end with decolonization, as many peoples worldwide still aspire to be able to determine their own futures. However, the lack of clarity in respect of its implementation in the form of internal or external self-determination continues to pose problems. This blog, based on my Ph.D. thesis, examines the way states should address post-Cold War separatist conflicts.  

The end of the Cold War and the related fragmentation of Yugoslavia and the Soviet Union in the early 1990s ushered a major historical turning-point for the evolution of the right of self-determination and the modalities of achieving secession. The demise of the two former federal states engendered scores of separatist movements aspiring for the establishment of independent, sovereign states.

The precedent-setting impact of their disintegration would place countries at a political crossroad in respect to how to address secessionist conflicts, and whether the scope and applicability of external self-determination should be broadened to encompass acts of secession.

From the Cold War period, we observe that states generally endorsed the right to colonial secession. If territories would be recognised and designated by the UN as colonised territories, or even “non-self-governing territories”, the peoples inhabiting such territories would be entitled to determine the most viable means for achieving their political aspirations for external self-determination.

This process brought about the emergence of numerous independent states and would effectively bring an end to imperialism in its formal sense and a retreat of colonial empires worldwide. Secession emerged as a vector for providing colonised peoples with freedom and the ability to join the ranks of the UN as independent countries.  

However, Palau’s independence of 1994 resulted in the end of the UN Trusteeship Council – thereby concluding the UN initiated decolonisation process. The UN no longer had the political and moral authority to undertake processes conducive to the decolonisation of colonised territories.

For many states and academics, a consensus would emerge in respect to the fact that the scope and applicability of the obsolete, colonial right of self-determination would have to be re-examined in light of the political and factual realities emanating from the demise of the Cold War.

This was the starting point of my Ph.D. thesis entitled “The right of self-determination in the post-Cold War era” of which I assessed the extent to which acts of post-Cold War secession, and related state practice, has contributed to a gradual shift in the political understanding and approach of countries to consider non-colonial acts of secession as an acceptable practice to determine the political status of territories.

If so, do countries consider that international law and related norms have evolved to such an extent that remedial self-determination could be warranted under specific conditions and circumstances?

It remains politically unthinkable that states would endorse a general right to secession. Such an entitlement would open the Pandora’s Box engendering the fragmentation of sovereign, multinational countries, and the creation of numerous micro-states.

A limited, conditional right to secession, invoked as a last-resort remedy in response to wrongful acts and related conducts of states on an oppressed party manifesting secessionist ambitions – referred to as remedial self-determination by scholars and states – emerged as a viable manifestation of post-Cold War secession.

This shift in the approach and understanding to re-consider the viability of secession for realising external self-determination must be seen in the context of the rise of the changing post-Cold War international order and liberal internationalism. The latter would place a stronger emphasis on the realisation of human rights and the safeguarding of human security, at the detriment of the Westphalian state-centric concepts of sovereignty and territorial integrity.

Although examining norm evolution constitutes a complex matter, there are certain indicators that provide points of guidance to examine its scope and implications.

Article 26 of the Statutes of International Court of Justice (ICJ) stipulates a set of factors – that remain indicative of norm evolution and emergence – among them state practice and related customs. Among scholars, there is a growing academic literature and acceptance that state practice is conducive to norm development.

In this connection, a comparative assessment of acts of post-Cold War secession would provide the research with empirical evidence to assess the evolution of state practice, and the extent to which, related acts have contributed to a broadening of the scope of the right of self-determination to encompass remedial secession.

The thesis’ first case-study was Timor-Leste’s break-away from Indonesia of 2002 – the first example of post-Cold War secession not emanating from Yugoslavia’s and the Soviet Union’s demise.

Although many scholars consider Timor-Leste’s secession to have had limited implications on the right of self-determination, as Indonesia gave its consent to its secession, an empirical assessment of state practice in respect to the self-determination conflict provide substantive evidence to examine the evolution of post-Cold War secession.

After having assessed the outcome of meetings of the UN Security Council and the UN General Assembly, one can observe that numerous countries would consider Timor-Leste to represent a new form of achieving secession and that post-Cold War state practice towards secessionist movements and its scope and applicability would have to be re-assess in light of recent precedents.

Other states would identify points of commonalities between the self-determination conflicts of Timor-Leste and Kosovo and contextualize their precedent-setting impact in light of the political and factual realities of post-Cold War secession. Secession could be applied as a mode of realising the political aspirations of oppressed parties – it would be argued – should a secessionist act emerge as a last-resort remedy and in response to wrongful acts of sovereign states.

Yet, it is evident that today states would place a stronger emphasis on human rights law, to the extent that it could override the principles of territorial integrity and sovereignty and would therefore hold states accountable for not addressing contentious self-determination conflicts in a peaceful manner.

Considering the precedent-setting impact of Timor-Leste, the second case-study – Kosovo – provides compelling empirical evidence regarding the evolution of post-Cold War secession and the related implications of state practice.

From a norm-making perspective, Kosovo remains an important precedent to be reckoned with. Its independence of 2008 has been recognised by most of UN member states – up to 116 countries. In respect to the outcome 2010 ICJ Advisory Opinion of which 43 states gave their contributions to examine the precedent-setting impact of Kosovo’s secession in response to the modes of achieving post-Cold War secession.  

The root-causes of the Kosovo dispute and its implications on remedial self-determination are evident. Many recognising states would often justify its independence from the perspective of remedial secession and argue that the modalities of achieving external self-determination have evolved to such an extent that Kosovo’s independence would not set a precedent.

From the oral and written proceedings of the ICJ Advisory Opinion on Kosovo, one can observe that countries opposed to Kosovo’s independence, such as Russia, would express their readiness to endorse acts of remedial secession if; i) undertaken in response to wrongful acts of states, and; ii) when such a scenario would emerge as the only viable solution to address a secessionist dispute in a peaceful and non-confrontational manner.

Against this background, the thesis’ last case-study examined the precedential impact of the self-determination dispute in Iraqi Kurdistan and the outcome of the 2017 independence referendum. What makes the Kurdish self-determination conflict of relevance to the evolution of post-Cold War secession and remedial self-determination are multiple, but I will limit its precedent-setting impact to the following three factors.

Firstly, the First Gulf War provided the first example of a military intervention against a sovereign state in the context of a self-determination dispute. Dubbed Operation Provide Comfort, and supported by an odd-30 states, coercive military measures would be undertaken against Iraq. For states that supported the intervention, it was argued, inter alia, that countries had an international obligation to undertake coercive military measures to rectify the adverse human rights and humanitarian situation that prevailed. A similar scenario would be replicated in 1999 in Timor-Leste and Kosovo.

Secondly, from the proceedings of the UN Security Council and UN General Assembly meetings, one acknowledges the emphasis of countries that violating states would not be able to encroach on the principles of sovereignty and territorial integrity to deprive rights-holds of manifesting their political aspirations for self-determination – and to ignore the concerted calls from other states for remedial action in their internal domestic affairs.

In consequence, several countries would consider military action to constitute viable measures to sanction a state for its wrongdoings when such related injustices would threaten international peace and security, violate arrangements for internal self-determination and human security at large. This, however, would still require a UN Security Council resolution under article 39 of the UN Charter, and military action could only be envisaged if other non-military measures pursuant to article 41 of the Charter had failed to correct the situation.

Thirdly, in respect to the 2017 independence referendum, one observes that very few states endorsed the plebiscite. However, there are several observations one can draw which demonstrate a gradual shift in the political approach of states and the emergence of a more favourable post-Cold War political climate towards contested acts of secession. 

• Firstly, there is not a strong political conviction among states that the emergence of a contested de facto state must be reversed for the sake of restoring the affected country’s territorial integrity and sovereignty. In the Cold War era, contested acts of secession would be condemned by the UN Security Council as evidenced in respect to Biafra, Katanga, Southern Rhodesia and the Turkish Republic of Northern Cyprus;
• Secondly, despite Iraqi Kurdistan’s contested political status, states engage with the political authorities in Erbil and have established liaison offices to facilitate their bilateral political conducts with Kurdish political authorities;
• Thirdly, certain states would remain open to recognise an independent Iraqi Kurdistan should Baghdad endorse such an outcome. A potential act of secession would therefore not be condemned, should it be undertaken consensually.  

In respect of the case-studies’ precedent-setting impact, what concluding observations can be identified in relation to the modalities of achieving post-Cold War secession and the evolution of the right of self-determination?

Firstly, it is obvious that the modes of achieving external self-determination are no longer limited to colonial circumstances and do not exclude non-colonial acts of secession. There is likewise a stronger emphasis on the necessity that the realisation of self-determination must contribute to the peaceful settlement of contentious self-determination conflicts, give incentive to states to settle disputes peacefully, safeguard human rights and human security, and remedy denials and violations of self-determination.

Secondly, it is important to emphasise that remedial self-determination does not equate unilateral secession and a general right to undertake secessionist acts against the wishes of the affected state. There is a higher likelihood that unilateral acts of secession will result in a political atmosphere that is unfavorable to the political aspirations of the seceding-aspiring entities. Secession may not override the principles of sovereignty and territorial integrity but must be exercised in the context of bringing the involved parties to a consensual solution that safeguards the political interest of involved parties. On the other hand, the principle of territorial integrity can no longer be considered superior to the right of self-determination of peoples, and a balancing of interests must be undertaken on a case-by-case basis.

Finally, it is evident that achieving secession is not automatic and self-executing – it hinges on the good will and geopolitical interests of states, often Great Powers, to achieve a secessionist outcome. To avoid political selectivity and arbitrariness in respect to secession, the UN and its member states should assess the extent to which secession can complement the safeguarding of sovereignty and territorial integrity.

The overall objective should be to avoid that secession is used as a tool to annex territories from states, and to avoid situations when states encroach on the principles of sovereignty and territorial integrity to systemically subjugate and oppress civilian populations.

During the Cold War, the world community acted in unity in concocting a political and legal framework conducive to facilitating decolonisation. Time is now ripe for a similar process to be undertaken in respect to post-Cold War secession and to re-assess the scope and applicability of external self-determination given the precedent-setting impact of contemporary political and factual realities.

Dr Blerim Mustafa, a Norwegian national of Albanian ethnic origin, serves as the Head of Unit at the Organisation of Southern Cooperation (OSC), an international, inter-governmental organisation established by countries of the Global South. Dr. Mustafa holds a Ph.D. in International Relations and Politics from the University of Leicester (UK) and has completed his graduate and under-graduate studies in Switzerland and Norway. He has over 10 years of experience in the development and non-profit sectors focused on human rights, religious diplomacy, education and diplomatic protocol and etiquette. He has operated in more than 20 countries across different world continents, having engaged in policy change and advocacy initiatives through a variety of mechanisms and institutional settings. Dr. Mustafa regularly contributes with authored articles and op-eds – his contributions have been cited in more than 10 countries. In his spare time, he enjoys watching football and travelling as well as improving his culinary skills.