Is There an Obligation to Negotiate Secession in International Law? From Reference re Secession of Quebec to Kosovo Advisory Opinion and Beyond

Abstract

This paper analyses the international community’s response in the recent cases of attempted secession and tries to answer the question whether international law has progressed to the level regulating the very process of secession. It will start by examining the provisions of the Reference re Secession of Quebec as it is the first document that has outlined the obligation to negotiate secession. In this landmark opinion, the Court has found that the obligation to negotiate stems from the enshrined constitutional principles, a view that has been accepted by the vast majority of scholars. Contrary to this position, the article will argue that, while negotiations are a very important step on a particular entity’s way towards secession, the obligation itself cannot be obtained from constitutional law. Instead, the obligation can be actually derived from the international law through, as this paper proposes, a novel theory of presumed or nascent statehood. Additional cases analyzed include the Kosovo Advisory Opinion and the view that the ICJ has taken on the final status negotiations and the Ahtisaari-led process. The case of Kosovo is further juxtaposed with other cases of attempted secession, mainly those of Abkhazia, South Ossetia, Somaliland, Transnistria, South Soudan and Bougainville. All these case studies are used in order not only to argue the emerging obligation to negotiate secession, ie to undergo a form of a dispute settlement process with the host-state, but also to outline how the different conduct of the parties during this process can affect the international support for the succeeding entity.