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The right of succession in international law : a new theory of legitimacy Simpson, Gerry J.

Abstract

Secession is the process by which a territorially discrete entity within a state achieves independence from that state. In this thesis a code of legality is devised which legitimizes secession in certain cases without advocating the breakdown of world order. The right of secession envisaged derives its force not from political concepts such as democracy, liberalism or socialism, but from the right in international law to self-determination. To this end, an historical introduction is offered which traces the historical roots of the right to self-determination and its earliest connection with secession. This study illustrates how the transformation of self-determination from political principle to legal right in the era of the United Nations and decolonization led to a restrictive interpretation of the concept. This interpretation, it is argued, has neglected the link between self-determination, human rights and the right to secede. Self-determination has consequently been drained of significance at the very moment when it should be in the vanguard of the quest for a world order based on respect for human rights. This study, therefore, has several purposes. First, a basis in international law for a right of secession is sought by analyzing the provisions of several United Nations Declarations on self-determination. Second, the humanitarian potential of the right of secession is realized by renewing the link between human rights and self-determination in a novel theory of legitimacy. Third, an index of validity is outlined by which the legitimacy of a particular secession can be ascertained using criteria which take into account political, economic and moral as well as legal factors. This index is referred to throughout the paper in five case studies which illustrate the varying practical consequences of applying this theory of legitimacy. In this way, a theory of secession is proposed which subscribes to the rules of international law and the realities of the international political system while providing a conceptual foundation for a humane world order.

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