On what grounds, and in what circumstances, do you consider that the population of a particular region within an existing state, might have a right to self-determined secession? Do they only have such a right if they are ethnically homogeneous; do they h

These circumstances must begin when a people identify that what best serves the nation is no longer what best severs them.  Miller describes those people seeking self determination as a nation.  This definition is distinct from the normal use that places nation closer to the idea of state than it does to the notion of people.  Miller differentiates between nation and state, noting that the term nation can be used to describe a community of people who may aspire to determine their own future, whereas a state is the set of political institutions that said community may aspire to posses themselves. If the nation has control of the state there is no need to engage in the destabilising act of secession. However when nation identifies itself as a minority nation within a larger nation that does control the state institutions the need for secession may become evident. If this minority nation does not believe that the state’s institutions act in their best interests; if the political process does not support their identity or provide for due process, then they may seek restitution through seceding and therefore place the focus of new state institutions clearly on their identified nation.  Miller’s thesis is certainly valid; however it is still a board interpretation of the circumstances under which secession could occur.  What is required is a more nuanced and precise theory which captures the specific circumstances under which the act of self determined secession could be justified.

To arrive at that more nuanced definition, it is important to first dissect the notion of self determination itself. Borgen notes that the legal concept of self determination is comprised of two distinct subsidiary parts.  The first part, the default rule set is internal self determination, which Borgen describes as, “essentially the protection of minority rights within a state”.  Internal self determination is sufficiently upheld when a state provides a minority people the right or ability to speak their own language, practise their culture in a meaningful manner, and participate in an effective way in the political community of the state, including its institutions.  Borgen then defines secession as the second part of self determination, classifying it as external self determination and noting that it arises, in the context of being justified, only in the most extreme of circumstances.  These circumstances include situations when the secessionists are a ‘people’, (in the ethnographic sense), that the state from which they are seeking to secede from has seriously violated their human rights and that there exist no other effective resolutions or remedies under domestic or international law. Should a national government, through the use of state institutions fail in a serious way to protect the basic rights and security of a people, community or nation, and in that failure has actively persecuted that group then the right to secede in the context of self defence is morally acceptable and politically viable.  

Borgen’s dissection self determination and his classification of the circumstances externals self determination are akin to what Buchanan described as remedial right only theory.  Buchanan’s theory posits that a people have the right to unilaterally secede if its physical survival is endangered, if it was subjected to massive human rights violations, or if it’s previously sovereign territory was unjustly taken by the state.  Remedial right only theory has a genesis in Locke’s theory of revolution, the simplified version of which is that if the state commits injustices against the people, the people have a legitimate right to rise up and fight those injustices. The suitability of remedial right only theory and its justification of secession lies in the fact that secession may in fact be far less painful to a state and its region than a prolonged revolution.  Remedial right only positions people to secede from, an unjust state, it is not the broad mandate to secede at will from a state that is not unjust. As such it provides the ideal justification for secession. There is an underlying moral imperative to both Borgen and Buchanan’s ideas; secession as self defence, in response to massive violations, to injustice, not to the social needs of a comfortable and stable middle class. Ideas that justify the idea that a people will in specific circumstances have the right to secede.  

That act of secession, in the face of violence and injustice, may require comparative violence on the part of the secessionists. Buchanan’s remedial right only theory concludes that if a group has a remedial right to secede then the hoist state has already lost the right to control the territory claimed by the group.  This theory associates the right to control a territory with the right to utilise force to defend it. This right is predication on the fact that as the host state has lost any right to force, the only group with any right is that group which now controls that territory, the secessionists.  This right to use force can be extended, according to Buchannan’s remedial right only theory, to the host state or any other group or organisation that challenges the groups right to control territory.

This paper will use a case study to provide further explication of the utility the justifications outlined above. On 17 February 2008, the province of Kosovo formally declared its independence from Serbia.  Borgen’s ideas on self defence and Buchanan’s remedial right only theory justify the creation of a second Albanian state in the Balkan region and can be seen as a remedy for grave human rights violations in the era of Slobodan Milošević. For Borgen’s idea to have utility it must be shown that the Kosovars can be considered a people, that the state they sought secession from ( Serbia) has seriously violated their human rights, and that there were no other effective resolution or remedies available to them.   Remedial right theory connects to the second of Borgen’s conditions, in that the secessionist demand for independence must originate from serious injustice. 

To answer the first of Borgen’s criteria we must establish that the Kosovars can be considered a people, in the ethnographic sense in order for them to be justified in acting under the broad umbrella of self determination. Even in a strict interpretation of the term people within the concept of self determination, it can be shown that the Albanian Kosovars constitute a people to whom the right of self determination can be attributed. Borgen himself worried that while it could be argued that the Kosovars had inhabited Kosovo for centuries that the Albanian Kosovars were generally considered to be an ethnic enclave rather than a nation unto themselves. However Jaber provides the rationalisation for the inclusion of sub-groups, such as the Albanian Kosovars, within independent states, noting that the UN General Assembly’s adoption of the Declaration on the Rights on Indigenous People includes the right of ‘peoples’ who are indigenous sub-groups of existent states.  Jaber further notes that it is clear that the Albanians of Kosovo are identifiable as a group on the basis of ethnicity and religion as they are ethnically Albanian and predominantly Muslim.  Jaber also highlights the clear relationship with which Kosovar Albanians have with the territory which seceded. For at least the last two centuries there has been a strong and identifiable Albanian presence in Kosovo. This long term relationship demonstrates that the Albanian Kosovars had pre existent relationship with the territory prior to the absorption of said territory within the more modern state of Serbia.  Finally Jaber notes that the integration of the Albanian people of Kosovo into the Yugoslavia was opposed in both 1912 and 1946, providing the final justification to attribute the term ‘people’ to the Albans Kosovar and the subsequent general right to  self determination and its subsequent right to secede.

The second of Borgen’s criteria, that the secessionists were subjugated to serious human rights volitation, is not hard to prove. Pavkovic notes that unlike other national entities within the former Yugoslav Republic such as Slovenia or Croatia, Kosovo’s secession from the republic of Serbia was a response to the severe curtailment of its autonomy brought about by constitutional changes in Serbia. . Kosovars were undeniably subjected to oppression and violence in the era of Slobodan Milošević. Kosovar Albanians were militarily persecuted by the institutions of the Serbian state through acts of exploitation, degradation or systemic violence. Serbian military and paramilitary forces have been found to be responsible for massacres, forced expulsion of over 700,000 Kosovars from the territory, the use of rape as a weapon of war and the purposeful targeting of civilian populations. The United Nations Resolution 1244 states that there was a “grave humanitarian situation in Kosovo” and that the, “situation in the region continues to constitute a threat to international peace and security” gives credence to the idea that Serbian forces were using significant force against the Albania Kosovars. Internal self determination had been denied to the Kosovars since 1989, leaving the majority population with a view that they could only seek relief from injustice by a process of external self determination or secession. In addition to the general right to of self determination this paper has attached the specific caveat of the right of self defence as described by Buchanan in his Remedial Rights Only Theory of secession. In these cases the moral imperative of self defence can be seen as the critical justification of an act of secession. This moral imperative is what validates the use of Kosovo as a case study in justified secession.  Kosovo’s separation from Serbia can be viewed as an exemplar of a nation under threat from the state to which it nominally belongs and seeking, through a Remedial Rights Only secession, to create a line of defence (through a formal and internationally recognised border) from which it can establish state institutions that are recognised by other states as having a moral and legal right to act in the defence of the newly established state.

Examining last of Borgen’s criteria, that there were no other effective resolutions or remedies available to them, we note that Borgen believed that by 2007 the possibility of any other resolution appeared unattainable. However Jaber believes that this last criterion is not met in the case of Kosovo. Jaber notes that if secession is to be justified on the basis of its requirement as a last resort, the Kosovo fails that test.  Attempts at internal negotiation had failed, in part, due to the fact that Kosovo would not accept anything less than independence by secession. Jaber argues that this lessens the utility of Buchannan’s Remedial Rights Only Theory as the justification for Kosovo’s secession.  It was not a last resort, negotiations could have continued. This debate does not invalidate the Kosovo case study, but it does highlight academic disagreement on some of the specifics.  Borgen calls Kosovo the ‘quintessential tough case’ for arguments on the justification of an act of session explicitly for this reason.

Finally the use of violence by the Kosovo secessionists must be examined. The theories used to justify the act of secession in this paper allow for the act of self defence to include acts of violence against the host state. That is acceptable to liberals when they see a people seeking independence form a state that has used, as had the state of Serbia, overwhelming force against the secessionists.  According to Buchanan’s Remedial Rights Only Theory once the moral imperative of self defence has been met, and a group is in effective control of a territory, then the host state has lost the right to engage in acts of force against the secessionist group. Conversely the secessionist group has won the right to utilise force to defend itself against the host states actions and the actions of any other organisation or group. Under Buchanan’s Remedial Rights Only Theory the preservation of autonomy can be managed through the application of violence.  In the case of Kosovo, once the Serbian forces had lost control of sections of Albania, and once the KLA was in effective control of the territory, operating under a mandate from the Albanian people and supported by the international community, they won the right to use violence to defend their newly won territory.  The secession of Kosovo can be seen, in the liberal context, as a case of right vs. wrong.  Serbia had acted with a lack of restraint in terms of its targeting of civilians.  While the Kosovo Liberal Army is not without blame, the Kosovo secessionists can be seen to be justified in countering the acts of violence committed against them by using violence itself.  

When a population of a particular region can be considered a people, in the ethnographic sense, then the right to self determination should be available.  If a minority, ethnically, religiously or politically homogenous, is not sufficiently a permitted to protect its culture and see it flourish then internal self determination is not sufficient and an act of external self determination or secession is justified. As these acts of secession can fracture the region, they must be enacted only under the strictest of criteria. Those outlined by Borgen and Buchanan represent the most useful theories. Acting in self defence, under direct threat, and when other alternatives are unavailable, then secession becomes justified. Within Remedial Rights Only Theory rests the justification to utilise violence as part of the self defence.  Ultimately acts of secession must be limited to cases where a people are under direct threat and secession represents the best solution. By removing them from the host state they gain an internationally recognised border, the support of international institutions to defend that border and provide a safe haven for their culture to flourish.

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