Secession, Legality, and Territorial Integrity: Applying International Law to the Falklands/Malvinas Dispute
The concept of secession in international law has been historically viewed as a largely factual process, one where a group or territory unilaterally seeks to break away from an existing state to form its own. However, in her book Secession in International Law with a Special Reference to the Post-Soviet Space, Júlia Miklasová challenges the traditional notion that international law remains neutral in the face of secessionist attempts. Miklasová’s analysis offers a nuanced approach to understanding how contemporary international law addresses secession, particularly when such efforts involve violations of peremptory norms.
Miklasová asserts that the classical view of secession as an "a-legal" phenomenon—one that is merely a factual occurrence devoid of legal regulation—fails to account for the evolving role of international law. She argues that international law increasingly plays an active role in assessing the legality of secessionist attempts, particularly when they involve violations of peremptory norms, such as the prohibition on territorial acquisition by force. Central to Miklasová's analysis is the concept of the "illegal secessionist entity." This term describes an entity that effectively controls a territory but whose creation violates fundamental principles of international law. These entities, according to Miklasová, may function as states in practice but fail to achieve legitimate statehood under international law because of their illegal origins.
Miklasová's examination is particularly concerned with post-Soviet entities such as Crimea, Abkhazia, and South Ossetia, regions that have declared independence or been annexed following the dissolution of the Soviet Union. These entities share a common feature: while they may exhibit characteristics of statehood, including governance structures and military control, they are largely denied legal recognition due to the circumstances of their creation. Miklasová argues that these cases demonstrate how international law increasingly imposes legal consequences on entities that seek to achieve statehood through unlawful means. Specifically, she underscores the principle of ex iniuria ius non oritur—the idea that no right can arise from a wrong—asserting that international law precludes the emergence of a new state if its creation violates peremptory norms.
Her argument is not limited to post-Soviet secessionist entities. Rather, Miklasová seeks to develop a comprehensive legal framework applicable to all secessionist movements, analyzing both the role of peremptory norms and the duty of non-recognition. She contends that, contrary to traditional views, secession is no longer a neutral process in international law. While secession may not be expressly prohibited in all instances, international law, she argues, favors the territorial integrity of states, and legal recognition of new entities remains contingent on their compliance with fundamental legal norms.
One of the most significant contributions Miklasová makes is her detailed exploration of the duty of non-recognition. She argues that the international community is obligated not to recognize territorial changes that result from illegal acts, particularly when these involve the use of force. In this context, the refusal to recognize entities such as Crimea, which was annexed by Russia in 2014, serves as a concrete example of how international law responds to violations of territorial integrity. The book delves into the broader implications of this principle, examining how non-recognition affects the ability of secessionist entities to engage in international relations, including treaties, economic activities, and diplomatic recognition.
Miklasová’s analysis also extends to the interaction between effectiveness and legality. In classical international law, effectiveness—whether an entity can effectively govern a territory—was often the determining factor in assessing statehood. Miklasová, however, argues that effectiveness alone is insufficient in contemporary international law. Instead, the emergence of a state must also be consistent with legal norms, particularly when violations of peremptory norms are involved. She highlights how contemporary practice, especially since 1945, has shifted toward a preference for consensual state creation and away from unilateral secession based solely on effectiveness.
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Now I cannot help but returning to my South American roots. Applying this framework to the situation in the Falkland Islands (Malvinas) offers a new lens through which to view this long-standing territorial dispute. The Falklands/Malvinas, a British Overseas Territory, are claimed by Argentina, which regards them as part of its sovereign territory. In 1982, Argentina invaded the islands, leading to the Falklands War, in which the United Kingdom reasserted control. Despite Argentina’s ongoing claims, the islands have remained under British control, and a 2013 referendum resulted in the islanders voting overwhelmingly to remain a British territory.
Although the Falklands/Malvinas situation does not involve a secessionist movement in the traditional sense, it does share important characteristics with the cases analyzed by Miklasová, particularly in terms of territorial integrity and the use of force. In this context, Argentina’s 1982 invasion can be viewed as a violation of peremptory norms, specifically the prohibition on the acquisition of territory by force. Under Miklasová’s framework, the international community’s continued recognition of British sovereignty over the islands can be understood as a reflection of the duty of non-recognition of illegal territorial changes. Just as the international community refuses to recognize entities such as Crimea or South Ossetia, it similarly refrains from recognizing Argentina’s claims to the Falklands/Malvinas.
Miklasová’s analysis of self-determination also has relevance for the Falklands/Malvinas dispute. The principle of self-determination, while often invoked in secessionist movements, plays a complex role in this case. The islanders have consistently expressed a desire to remain part of the United Kingdom, exercising their right to self-determination. Argentina, however, disputes the application of this principle, arguing that the islanders are a colonial population and that the principle of territorial integrity should take precedence. Under Miklasová’s framework, self-determination, when aligned with fundamental legal norms, supports the continued recognition of the Falklands as a British territory.
Miklasová’s work provides a compelling legal framework for analyzing territorial disputes and secessionist movements in the modern world. While it perhaps does not support the outcome I prefer in the Malivanas, her emphasis on the importance of legal norms, particularly the prohibition of territorial changes by force and the duty of non-recognition, offers valuable insights into the ongoing dispute over the Falklands/Malvinas. By focusing on the interplay between effectiveness and legality, she demonstrates that international law plays an active role in shaping the outcomes of territorial conflicts, even when they do not involve classical secessionist movements. In the case of the Falklands/Malvinas, the continued recognition of British sovereignty and the rejection of Argentina’s claims can be understood as a reflection of these legal principles, reinforcing the importance of adhering to international law in resolving territorial disputes.
This position on territorial integrity stands in contradiction to the many unambiguous references in the UN Charter, ICCPR and so on regarding the right of peoples to self determination. There is no qualification placed on this right. In the presence of the denial of this right, people have the right to use force to protect themselves - which is one of the main exceptions to the prohibitions to the use of force. While it is all cute to say that new countries should be formed by consensus such an event happens rarely if at all - especially when said country has veto powers. It is naïve to assume that decolonialization is a correction to a one time mistake that happened in human history and that somehow we have arrived upon an optimal division of the world into power centers. This wrong idea is the cause of much (all?) of the human rights violations and ensuing internal armed conflicts today. Ideally, I believe (without any proof) that there should be around 2000 countries in the world instead of 200. Any group of people who believe they have the maturity to handle themselves and declare their intention for it must be allowed to secede. Not doing that is akin to forcing children to live for ever with their parents 😉