Horowitz, D.L. (2003) ‘The Cracked Foundations of the Right to Secede’

Horowitz, D.L. (2003) ‘The Cracked Foundations of the Right to Secede’, Journal of Democracy 14 (2), 5-17.

1. Two international legal developments in regulation of conflict and warfare between ethnic groups:
   1. Tribunals to punish genocide and crimes against humanity;
   2. Elaboration of various doctrines of human rights, including a possible right of ethnic groups to secede.
2. Such a right is ill-considered and dangerous.
3. Certain theorists see secession as answer to problems of ethnic conflict and violence; that is wrong: it is likely to make such problems worse.
4. Secession does not create homogenous successor states or reduce conflict, violence, or minority oppression in successor states (5-6).
5. Minorities’ condition can best be improved by devising institutions to increase their satisfaction within existing states.
6. “Partition can be accomplished reluctantly, as a matter of prudence, without recognizing a right to secede” 96).
7. Atlantic Charter, 1941: self-determination limited to peoples living under foreign domination, resulting in decolonization.
8. From the end of WWII to end of Cold War territorial boundaries were remarkably stable.
9. After the end of the Cold War boundaries became less stable. Badinter Commission on Yugoslavia legitimised breakup of this federation.
10. Various theories of self-determination leading to secession:
    1. An integral right of peoples to be free of authoritarian oppression: right to live under a democratic regime;
    2. Right of people in general of with common group characteristics to choose with whom they wish to associate politically – although collective identity fluctuates;
    3. Remedial right: last-ditch response to discrimination or oppression by central government;
    4. All assume secession can result in homogenous successor states or at least ones that will guarantee minority rights.
11. Treatment of minorities in new states will not improve if minorities were not respected in undivided state.
12. “Secession merely proliferates the arenas in which the problem of intergroup political accommodation must be faced” (9).
13. Secession encourages the former minority, now a majority, to cleanse the secessionist state of its own minorities and induces the rump state to do the same.
14. There are no truly natural boundaries that secession can institutionalise.
15. Secessions and partitions convert domestic ethnic disputes into more dangerous international ones and trigger irredentist claims that often are followed by ethnic cleansing.
16. A right to secede will undermine efforts to achieve interethnic accommodation within states (10).
17. Devolution efforts are most effectively undermined by a right, recognised under international law, to secession.
18. “A right to secession effectively advantages militant members of ethnic groups at the expense of conciliators.” (11)
19. A right to secession grounded in extreme oppression of minorities derives from an alleged commitment of international law to democracy. Such a commitment is tenuous at best.
20. Self-determination for peoples or groups within a state is to be achieved by participation in its constitutional system, on the basis of respect for its territorial integrity.
21. Secession is an anti-state movement and undermines the very foundation of current international legal order – state sovereignty.
22. Solution is to foster interethnic accommodation within states, through institutions that can mitigate conflict:
    1. Consociational democracy: neglect of democratic opposition and propensity for excessively limited government and immobilism; it is attractive to minorities, not majorities.
    2. Use of political incentives to encourage ethnic moderation: electoral systems capable of inducing moderate behaviour by politicians.
23. Political engineering can work in specific circumstances, but is no panacea.
24. “Efforts at conciliation will not be helped by providing either a liberal or constrained right to secede” (15).