n Tydskrif vir die Suid-Afrikaanse Reg - Wat is die huidige regstatus van selfbeskikking in die vorm van sesessie in die internasionale reg?
|Article Title||Wat is die huidige regstatus van selfbeskikking in die vorm van sesessie in die internasionale reg?|
|© Publisher:||Juta Law Publishing|
|Journal||Tydskrif vir die Suid-Afrikaanse Reg|
|Publication Date||Jan 2005|
|Pages||514 - 530|
ISI Social Science
Secession : right or remedy?
Secession, as one of the logical consequences of the right of self-determination, is a contentious issue. Until recently, it was considered illegal for a group to secede from a state. Since the break-up of Yugoslavia and the Soviet Union however, the issue of secession has received renewed attention. The legality of the aspiration to secede in defined situations, as well as the appropriate means by which secessionist aims may be pursued or resisted, are the issues that concerns international lawyers today.
The issue of secession arises whenever a significant proportion of the population of a given territory, being part of a state, expresses the wish by word or by deed to become a sovereign state in itself or to join with and become part of another sovereign state. Secession is considered the ultimate possibility for a group caught in total failure of the intended balance between self-determination of all the peoples, and minority rights of some of the people.
Self-determination is normally to be exercised within the borders of existing states, that is with due regard to the principle of territorial integrity. There is no inherent right on the part of a people within a state to secede. While secession is not contrary to international law, there is a presumption in favour of territorial integrity and against secession. Secession should be recognized where it is agreed to by all the component parts of the state to be dissolved. Where there is no agreement on the component parts of a state to secession, the international community will not recognize the secession, unless the people of the seceding territory constitute a distinct people, having regard to their language, culture and historical experience; the people have a clear historical claim to the territory in question; the territory occupied by the secessionist group came under the control of the existing state by some unjustifiable historical event; the will of the people of the territory has been expressed by means of a referendum or election and shows very clear support for secession; the human rights of the people have been seriously violated and they have been denied proper participation in the government of the state from which they wish to secede.
Recognition will not be accorded to a seceding territory unless it complies fully with the traditional requirements of statehood expounded in the Montevideo Convention, particularly effective government and it provides adequate national and international guarantees for the protection of its minorities.
Secession is therefore a justified "remedy" and a "ground of justification" for a group suffering some unjustifiable act, the result which can be full statehood for the secessionist group.
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