Remedial Self-determination

It has to be admitted that the doctrine of remedial succession was opposed in scholarship until quite recently However, the case of Kosovo, and perhaps also the apparent de facto tolerance of events in Georgia in August 2008, has accorded it greater credence. Moreover, these recent instances have led to a re-discovery of authority in favour of the doctrine. For instance, in the Aaland Islands case of the League of Nations era, the Commission of Rapporteurs found that  

The separation of a minority from the State of which it forms a part and its incorporation in another State can only be considered as an altogether exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees. 

Indeed, the author must confess to some scepticism in this respect in earlier writings. Report Presented to the Council of the League of Nations hy the Commission of Rapporteurs, League of Nations Doc. B.7.21/68/106 (1921), at 28. 

Failure to grant autonomy and human and minority rights provisions might therefore be constitutive of a right to self-determination. 

More recently, the African Commission on Human and Peoples Rights has ruled that  

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This ruling seems to suggest that a population would not be bound to accept the restraint of territorial unity if it could not participate in the governance of the state. The Canadian Supreme Court, in the Quebec Reference, also accepted that remedial self-determination may exist in certain circumstances, namely possibly where a people is denied any meaningfnl exercise of its right to self-determination within the state of which it forms part . ... 

For a similar categraization see Freeman (1999), pp. 359-360. Freeman uses the term remedial self-determination Fot what Koskenniemi calls the classic theory. Koskenniemi s rranantic theory is termed voluntarist seU-determinatiOTi by Freeman. 

This monograph will first illuminate the restrictive nature of the doctrine of self-determination. It will then turn to relatively new concepts, such as constitutional self-determination and remedial secession. Finally, the remainder of the book will be devoted to the analysis of recent settlement practice in the area, addressing the question of whether this profusion of settlements has helped to overcome the damaging consequences of the restrictive doctrine of self-determination for the international system. 

Finally, it is necessary to refer briefly to cases where an entity cannot lay claim to any self-determination status, be it colonial, constitutional or remedial, but manages nevertheless to exhibit the criteria necessary for statehood (that is, territory, population and effective government). 

Istvm Bibo, The Paralysis of International Institutions and the Remedies A Study of Self determination, Concord Among the Major Powers, and Political Arbitration (Hassocks Harvester Press Ltd., 1976). 

Regarding self-determination, this tripartite covenant is tested. The exercise of self-determination is not dependent on the breach of obligations by the state. Self-determination can be exercised under any circumstance. It is the form self-determination takes that can be dependent on the state behaviour. Internal self-determination— in a narrow or a wide understanding—can be (and this will be agreed upon in the original position) part of the covenant. Internal self-determination structures society. External self-determination is only a possible remedy when the covenant is broken by the state. 

Epps (1997), p. 441. This is a form of what Freeman has called the remedial theory of self-determination. Secession is a right of last resort. See Freeman (1999), pp. 359-360. 

Arguably, Kosovo can be differentiated from East Timor because the latter represented a delayed exercise of self-determination in the decolonization paradigm, while the former constituted a case of remedial secession outside any decolonization context. Nonetheless, the role of the great powers and their influence in realizing the self-determination dream is very similar in Kosovo and in East Timor. 

Explicit in this message was that Kosovo could never be a model for any other separatist movement, and that Kosovo was not about remedial secession or external self-determination. Rather, Kosovo was simply unique—because the great powers had decided so. Kosovo illustrates the great powers rule at its best, as well as the evisceration of legal rules on self-determination in favor of political determinations and strategic factors. 

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