MMORTIMORE Pol 5 Long Essay 2 Submission

1
Should there be a right to national self-determination?
Submitted to University of Cambridge
The work contained in this research paper has not been previously submitted for a
degree or diploma at any other higher education institution. To the best of my
knowledge and belief, the research contains no material previously published or
written by another person except where due reference is made.
Date: 27th
April 2015

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1. Introduction
In this essay I argue that there should be a right to national self-determination.
However, in the interests of preserving state territorial stability, the right must be
restricted. Acts of self-determination via secession by nations should only be
permitted in exceptional circumstances. It is thus imperative that alternative measures
for groups to pursue national self-determination within borders be proliferated and
implemented. Doing so ensures that groups can shape their polity the way they wish.
It also prevents a secessionist free-for-all, where nations may dismember states on the
basis of protecting their culture. My approach reflects an attempt to balance two
competing forces at the heart of this debate: the interests of national groups, and the
state-based international community. To elaborate, self-determination is the claim of a
state to “exercise sovereignty within its own borders, and not to be invaded or coerced
by its neighbours.”1
In contrast, the term “national self-determination” represents the
“vision of a body of people sharing a common identity and wishing to be associated
with one another in deciding their own future.”2
This people-centric notion of self-
determination represents a challenge to the state-centric international legal and
political systems, threatening the authority and territorial stability of existing states. In
exercising a right to national self-determination, a state’s right to territorial integrity
no longer applies to the area in question (at least to the extent it once did). Debate
centers on the question of whether national minorities seeking independence, should
be allowed to separate from their parent state.3
Two competing perspectives are at the
heart of this discussion: those advocating for pro-statist notions of territorial integrity,
who support a restricted claim for nations to self-determination; and those that argue

1
David Miller, Citizenship and National Identity (Polity Press, Cambridge, 2000) 111.
2
Ibid.
3
Ibid.

3
for a permissive approach, whereby individuals are empowered to shape their polity.
Variance in approaches to national self-determination reflects the competing forces at
the heart of this debate. Factors including governmental authority, historical identities,
and minority rights are all at play.4
Therefore, developing a coherent normative
assessment over whether there should be a right to national self-determination
requires one to account for and balance a variety of considerations “pulling in
different directions.”5
Determining whether there should be a right to national self-determination centers on
a number of moral and institutional considerations. While the protection of minority
rights is important, it is also essential to consider whether a potential right is
compatible with international legal and political systems.6
The implementation of a
right to national self-determination should not be disruptive to the achievement of
other “worthwhile goals of the international community.”7
Further, it is critical that
the implementation of any such right does not involve “unacceptable moral costs”.8
For example, a theory of national self-determination would not be acceptable if it can
only be implemented at the cost of mass violations of human rights and violent
changes to national boundaries. Finally, any theory must avoid the creation of
“perverse incentives”, whereby a national right to self-determination would encourage
parties to act in ways counter-productive to the goals of the international system.9

4
Ibid.
5
Ibid.
6
Allen Buchanan, Justice, Legitimacy, and Self-Determination (OUP, Oxford, 2003) 213.
7
Ibid.
8
Ibid.
9
Ibid.

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The following will provide an outline of how the right to national self-determination
should take shape. First, I will discuss why an unqualified right, as advocated by
primary right theorists, is not feasible, representing a threat to the territorial stability
of states by catalyzing state breakup. Second, I posit that while qualified right
approaches do acknowledge the need to limit movements for national self-
determination via secession, they do not provide adequate criteria to determine at
what point a group holds the right. Third, I shall argue that a restricted approach to
national self-determination, based on the human rights framework, provides a strong
basis upon which to assess claims to secession. Finally, I posit that in addition to a
restricted right, a variety of alternative measures to pursue national self-determination
within existing state borders need to be proliferated and implemented.
2. National Self-Determination and International Law
Most theories of national self-determination focus on the exercise of a claim through
secession. They discuss whether legitimacy should be afforded to attempts by national
minorities to separate from the parent state out of a desire to be self-determining.10
The focus on this aspect of national self-determination is due to it being the strongest
possible exercise of a right; secondly, under international law, unilateral secession is
neither prohibited nor allowed, inviting discussion over whether such right could
feasibly be implemented.11
The status of a right to national self-determination under
intentional law is a key consideration, as it is through this system that any right would
be implemented. Nothing in international law prohibits negotiated agreements to
allow secession between the state and national groups, nor secession via national

10
David Miller, above n 1.
11
Request for an Advisory Opinion of the International Court of Justice on whether the unilateral
declaration of independence of Kosovo is in accordance with international law, GA Res 63/3, GAOR,
63rd
sess, 22nd
plen mtg, UN Doc A/Res/63/3 (10 October 2008) 1.

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constitutions, as these are domestic matters.12
The status of unilateral secession is not
as clear. While not expressly prohibited, it is argued that the emphasis on the
territorial integrity of states under international law “implies a strong presumption
against the permissibility of unilateral secession.”13
This is taken to imply that a
minority group does not have a right to self-determination beyond that of the
collective population of a state.14
National self-determination represents a departure from the traditional view of nation-
states being the only actors that can influence the shape of the international
community.15
This approach is based on notions of autonomy and justice, promoting
the ability of individuals to shape their circumstances to “suit their aims and
ambitions.”16
This extends to groups of individuals that form a national community by
virtue of their history, tradition, ethnic identity, language, attachment to territory, or
culture differentiating them from their neighbours.”17
National self-determination
promotes the recognition of such groups as having a claim to political autonomy by
virtue of their shared characteristics. In the words of former Australian High Court
Justice Michael Kirby: national self-determination holds that peoples should not be
“locked into the falsehoods and potential oppression of living together with other
peoples in a political organisation which they find uncongenial and even
intolerable.”18
While political and legal scholars acknowledge the good of self-
determination, there is disjuncture over which groups may exercise the right, and the

12

David Miller, above n 1, 111.

13
Ibid 210.
14
Gillian Triggs, International Law (Lexis Nexis Butterworths, Sydney, 2011).
15
Michael Kirby, ‘Self-Determination,’ in Donald Clark and Robert Williamson (eds), Self-
Determination: International Perspectives (Macmillan Press, London, 1996) 381.
16
17
Ibid 114.
18
Michael Kirby, above n 15, 381.

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extent to which they may do so. The differing approaches towards a potential right
can be roughly categorized into three groups: permissive primary right theories;
qualified theories; and restrictive right theories. While all posit that there should be a
right to national self-determination, its form can be heavily influenced by the
approach adopted.
3. Primary Right Theory
Primary right theories take a permissive approach towards national self-
determination. This perspective is centered on a commitment to liberty, autonomy,
and rights to political association, whereby individuals are possessed of certain moral
rights that the state may not violate.19
In the context of national self-determination,
advocates of this approach argue for a presumption favouring the free choice of
individuals “regarding what polity they wish to belong to”, and against state attempts
to deny the political liberty of those wishing to secede.20
Primary right theories
contend that liberalism “houses a robust right to secede grounded in political self-
determination.”21
To justify secession, they simply require the ability and willingness
of a national group to “perform the functions that a government must.”22
There are a host of problems with implementing a “presumptive right” to national
self-determination.23
Primary right theories make the dubious claim that even a
perfectly just state, which has protected human rights, may be dismembered upon the

19
Allen Buchanan, above n 6.
20
Ibid 143.
21
Ibid.
22
Christopher Wellman, ‘A Defense of Secession and Political Self-Determination’ (1995) 24
Philosophy and Public Affairs 142, 170.
23

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will of a national group.24
Surely the people of the larger nation-state as a whole also
possess a claim to the territory, and have some say in the political future of the region.
It is also likely that there are individuals within the potential secessionist regions that
do not support separation. Primary right theories discard these claims.25
This approach
undermines “the potential for democratic development in nondemocratic states and
threatens the foundations of democracy in democratic states.” 26
Advocates of this perspective seek to make the determinations of boundaries a matter
of majority rule, grounding their arguments in notions of individual liberty and
democracy. However, this conception of majority rule does not concern the state as a
whole, but only a certain portion of it. This repudiates traditional notions of popular
sovereignty, whereby a people’s territory and rights are conceived of as a whole, and
where the people stand together in a special relationship towards the territory of the
state.27
These theories suggest that sovereignty can be “unbundled”, and conceive the
state as being a collection of autonomous territorial and national segments that are
“each owned by those groups who reside within them at any given time.”28
In
democratic nations, an unbridled right to national self-determination would ignore the
rights of the rest of the citizenry to determine their state’s future. Consider the
territorial claims of the Spanish and Canadians as against the counter-claims of the
Catalans and Quebecois respectively. Should the claims of the respective minorities
override those of the wider nation-states within which they reside? If one subscribes
to the primary right approach to self-determination, then these minorities have a

24
Ibid 233.
25
Kai Nielsen, ‘Liberal Nationalism and Secession,’ in Margaret Moore (ed), National Self-
Determination and Secession (OUP, Oxford, 1998) 111.
26
27
28
Michael Kirby, above n 16.

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presumptive right to secede, regardless of the competing interests of other peoples
within Spain and Canada. 29
While secession in the cases above may not be
catastrophic in isolation, the issue with primary right approaches is that as national
identities proliferate, an unrestricted right would give all groups a claim.
It is doubtful whether a primary right approach to national self-determination could be
implemented without severe repercussions.30
While this approach could arguably
advance individual interests and autonomy more effectively than the current state-
based international system, they would also make territorial boundaries inherently
unstable. Virtually every state is multicultural, inhabited by a “kaleidoscope” of
national groups with competing identities.31
Ethnically homogenous states are the
exception. A presumptive right, as based on a socio-cultural identity is unrealistic, as
it could theoretically open the door to “unlimited, unilateral, forcible border changes”,
ethno-national violence, and other rights breaches.32
Clearly, an unrestricted right to
national self-determination would hardly be progressive for the international
community, should such a floodgate scenario come to fruition. In addition to all the
potential for disruption, it is by no means certain that the exercise of a primary right to
national self-determination via secession would resolve the nationalist conflict in
question.
Considering the complexity of nationalist conflict, primary right advocacy of
secession as a one-stop solution is misguided. Nationalist claims to self-determination

29
David Miller, above n 1.
30
Ibid.
31
Ibid 125.
32
Allen Buchanan, above n 6, 236.

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are highly varied, and in most cases the conditions for the exercise of a claim are
rarely ideal, as illustrated by Moore:33
“The principle of national self-determination is unproblematic only in the
ideal case that the administrative boundary coincides with the ethnic or
national group; the group is territorially concentrated, with no significant
minorities, and the members of the groups are strongly mobilised in favour of
self-determination.”
It is more common that notions of what constitutes “a people” entitled to national
self-determination, and the claim that such a group makes over a given territory, are
contested issues. Many potential nations existing within states have not been based
within “compact territorial units but intermixed with each other in complex
patterns.”34
Mixed populations and minorities spilling across territories will serve as a
basis for conflict when secession does occur. New entities will have their own
minority populations, whereby this “new lower-level context” can serve to aggravate
“once dormant sub-ethnic cleavages.”35
This compromises the secessionist vision of
an ethnically homogenous society. Consider the scenario where new sub-ethnic
groups emerge to claim a right to national self-determination. Should these minorities
have a right to secede from the newly created state? The fear is that an unrestricted
right to self-determination will open the floodgates to an endless line of claims where

33
Margaret Moore, ‘Introduction,’ in Margaret Moore (ed), National Self-Determination and Secession
(OUP, Oxford, 1998) 3.
34
Daniel Philpott, ‘Self-Determination in Practice,’ in Margaret Moore (ed), National Self-
Determination and Secession (OUP, Oxford, 1998) 91.
35
Donald Horowitz, ‘Politics, Philosophy, Law,’ in Margaret Moore (ed), National Self-Determination
and Secession (OUP, Oxford, 1998) 199.

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“secession begets secession in a chaotic mitosis.”36
Therefore, secession will not
necessarily cure nationalist conflict, and may even recreate, in the new state, the
conditions that led to separation in the first instance.
4. Qualified Right Theory
To suggest that any national group has a right to unrestricted national self-
determination is a “recipe for political chaos.”37
In response to this, political scholars
such as David Miller advocate for a weaker defence of the right.38
They have devised
qualified theories, formulated to provide guidance in assessing claims to national self-
determination. Such theories are based on the assumption that “there is value to being
a member of a state that embraces your nation”, and that being part of a minority is
undesirable.39
However, qualified theories rightly attempt to account for the realities
of implementing a right by balancing national group interests with other
considerations. For instance, Miller proposes two criteria to assess whether the claim
of a potential secessionist movement is justified.40
Firstly, the group should form a
nation with an identity that is clearly distinct to the wider state.41
The strength of a
given claim rests partly on “how far different groups have or have not evolved
separate national identities.”42
Secondly, the group should be able to validate its claim
to exercise authority over the territory it wishes to occupy.43
Factors such as a
people’s common history and attachment to a geographical place could found the
claim to territory. If both criteria are met, then the group has a serious claim to secede,

36
Ibid.
37
38
Ibid.
39
Ibid.
40
Ibid 118.
41
Ibid.
42
Ibid 125.
43
Ibid.

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which may nevertheless be defeated by other considerations.44
For instance, one
consideration may concern how minorities are likely to fare under newly established
secessionist regimes.45
Alternately, there may be questions over the distribution of
resources between the secessionist region and remainder state. The pursuit of national
self-determination should not leave the remainder state in position of deprivation in
such a way as to prevent individuals in that state from achieving “justice among
themselves.”46
Consider the claims of the Catalans in Spain and the Kurds in Turkey. The Catalans
possess a “nested identity”, being a national minority within the larger Spanish state.47
While they view themselves as a distinct people, residing within a defined territory
and speaking their own language (along with Spanish), there is “no deep-seated
hostility” to the state.48
Further, the Catalans enjoy a higher average wage, on
average, than the rest of the population, and are held in relatively high esteem
throughout Spain.49
In contrast, the Kurds in Turkey have been subject to attempts by
the state to suppress their language and culture, which has been the source of violent
conflict between the state and Kurdish minorities.50
Such conflict has arisen out of the
Kurdish state’s promotion of a culturally homogenous Turkey. In applying the
qualified approach, an analysis of the “content of the group identities” is necessary to
determine whether these groups possess distinct cultural identities at odds with the

44
Ibid.
45
Ibid 124.
46
Ibid 123.
47
Ibid 110.
48
Ibid 114.
49
Jason Sorens, ‘The Cross-Sectional Determinants of Secessionism in Advanced Democracies’ (2005)
38 Comparative Political Studies 304.
50

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larger nation-state.51
The greater this distinction, the stronger the claim of the group
becomes. The Catalans view themselves as a distinct people, yet there is considerable
cultural overlap between the minority group and the remainder population.52
The
Kurds on the other hand are part of “one of the world’s most numerous peoples
without a state”, possessing a common history, culture, language, and an attachment
to a defined territory (including territory in Turkey, Iraq, Iran, Syria and Armenia).53
On this basis, Miller suggests that the Catalonian and Kurdish movements are
“qualitatively different”, suggesting that the latter claim is the stronger of the two.54
I argue that assessing the above claims through a qualified theory such as Miller’s is
not an exercise of objectivity. The criteria involved are so broad that making a
determination can become a matter of perspective. Add to this the need to consider
other competing interests: those of the Turkish and Spanish states, and those people
within the minorities that do not want to pursue a claim to secession. Throw in issues
of distributive justice and the viability of potential new state regimes. How can one
judge with any accuracy, the point at which a claim defeats the other considerations?
Qualified right theories such as Miller’s offer no precise and objective formula for
determining whether a national group can pursue a claim. I do emphasize, however,
that qualified right theories of national self-determination are better than primary right
approaches at accounting for the complexities and potential harms associated with
secession. Nevertheless, the criteria as set out in models such as Miller’s are vague.

51
Ibid.
52
Paul Gilbert, ‘Communities real and imagined,’ in Percy Lehning (ed), Theories of Secession
(Routledge, London, 1998).
53
The Economist, ‘Set the Kurds Free’ (21 February 2015)
<http://www.economist.com/news/leaders/21644151-case-new-state-northern-iraq-set-kurds-free>;
Ofra Bengio, Kurdish Awakening: Nation Building in a Fragmented Homeland (UT Press, Austin,
2014.).
54

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They do not clearly establish under what circumstances a national minority possesses
a right to national self-determination, and under what conditions secession may be
justified. Considering the serious implications of exercising a right through secession,
an imprecise theory is not feasible.
5. Restricted Right Theory
I argue that a restricted right to national self-determination is one that can protect the
liberty and autonomy of national minorities, while preserving territorial stability
within the international state system. Under international law, the only circumstances
permitting a population to secede on the basis of national self-determination (aside
from “classic decolonization”) would be “grave and massive violation[s] of the
human rights of a specific group in a discriminatory fashion.” 55
Unilateral secession
is currently only a remedial right, whereby the international legal order will support
states in the preservation of their territorial integrity so long as they “do a credible job
of protecting basic human rights.”56
Buchanan labels this approach a “justice-based
theory of legitimacy”, where the provision of justice serves as the foundation for state
power.57
Failure to meet this standard entitles the group subject to discrimination the
right to pursue national self-determination through secession as a “as a means of self-
defense against their oppressors.”58
They may thus repudiate the state’s authority and
void its claim to the territory in question. This approach rejects the claim that “all
nations … are entitled to their own states.”59
The restriction is warranted, as in most

55
Marcelo Kohen, Secession (CUP, Cambridge, 2012) 35; UNGAR 2625, UN Doc A/RES/25/2625.
56
57
Ibid.
58
Ibid.
59
Ibid.

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cases, secession is the least feasible exercise of national self-determination.60
It also
reflects the gravity of voiding the right to territorial integrity, with any change
requiring strong justification.61
However, it must be noted that this approach to
national self-determination has been the subject of criticism, especially from primary
right advocates who argue that remedial right theory reflects a bias towards a statist
status quo.
Critics argue that placing primacy upon the notion of territorial integrity is a
perspective that suits power holders in the international sphere. They contend that this
“assumed bias” towards the international status quo places the burden of proof on
those seeking to claim a right to secession by “establishing a significant grievance
against the state.”62
I wish to make the opposite claim: that the burden is on the state,
which is bound to ensure a “minimum level of compliance to rights norms.”63
From
this perspective, non-compliance forms the basis by which a state may lose its claim
to territory.64
However, basing the restricted approach on the human rights framework
attracts its own criticism. The primary argument is that nationalism, and not rights,
forms the basis of most claims to national self-determination.65
This suggests that the
remedial approach constitutes a misunderstanding of the issue. Such a perspective is
misguided, as a rights-based theory does not necessarily conflict with nationalist
considerations. It is national minorities who are often the targets of rights breaches.
Through remedial secession, national minorities may defend themselves against such

60
Ibid.
61
Ibid 229.
62
Ibid 230.
63
Ibid.
64
Marcelo Kohen, above n 55.
65

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treatment, and base their claims on the “long respected” human rights framework.66
Further, it is the case that the remedial approach does not reject nationalist claims to
self-determination, but rather accepts only the strongest claims.67
Ultimately, the
restricted approach limits the potential for the emergence of destructive effects of a
right to national self-determination. It also respects the claims to territory of states
that are perfectly performing their legitimating functions, which serves to incentivize
the “development of a just international legal and political regime.”68
6. Alternative Approaches
Secession is the focus of discussion for most theories of national self-determination.
The tendency is to limit discussion to “isolated acts of state fragmentation and
formation.”69
Such an approach is one of extremes, whereby “full independence or the
absence of any form of self-government” appear to be the only options available to
nations pursuing self-determination.70
It also ignores the often-high moral costs of
implementing these theories, especially when one considers the less risky ways to
accommodate national group interests.71
This standpoint is based on the false
assumption that “implementing a unilateral right to secede for all nations is more
feasible than building effective institutions of transnational justice and facilitating
intrastate autonomy arrangements.”72
Focusing on an isolated act of territorial change
is a narrow approach, limiting the scope through which issues of national self-

66
Ibid.
67
Ibid.
68
Allen Buchanan, Secession (Westview, Boulder, 1991) 27; Margaret Moore, above n 33, 9.
69
Michael Kirby, above n 15.
70
71
Ibid.
72
Ibid.

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determination can be addressed.73
Additionally, it neglects more sustainable means
through which people can pursue their destinies.74
Under the restricted right approach
that I am advocating, there may be many strong claims to national self-determination
that do not reach the required threshold to pursue secession. With this in mind, it is
essential to emphasize the development of initiatives encouraging “multi-ethnic
participation” allowing national minorities to pursue a level of political and cultural
autonomy while ensuring state stability.75
A viable right to national self-determination must embrace the idea of “larger, more
complex multi-ethnic states.”76
This must form the foundation of approaches that
promote national groups asserting and safeguarding their distinct identity through
state policies that promote diversity and equality.77
Such policies ensure that ethnic
groups are at home in the common state, and can pursue self-determination without
demanding territorial change. 78
Numerous approaches can be pursued to
accommodate minorities, many of which depend on the willingness of state
governments to devolve powers to national groups.79
One such domestic measure may
involve state governments allowing local and autonomous administration by national
groups within select territories under their control.80
Such an arrangement involves
the delegation of powers to municipal authorities with expanded functions, leaving

73
Rodolfo Stavenhagen, ‘Self-Determination,’ in Donald Clark and Robert Williamson (eds), Self-
Determination: International Perspectives (Macmillan Press, London, 1996) 5.
74
Ibid.
75
Ibid.
76
Donald Horowitz, above n 35, 196.
77
Asbjorn Eide, ‘Peaceful Group Accommodation as an Alternative to Secession in a Sovereign State,’
in Donald Clark and Robert Williamson (eds), Self-Determination (Macmillan Press, London, 1996)
99.
78
Ibid 107.
79
80
Ibid.

17
local matters up to the group of representatives in a given region.81
By giving a group
control over internal affairs, they are better positioned to preserve their identity,
dignity and culture.82
Promoting autonomy places these groups on a more equal
footing with the rest of society, in addition to “fostering harmony between the
majority and minority.”83
States may also establish advisory and decision-making
bodies to consider minority affairs and facilitate relations between autonomous
regions and state authorities. Further, constitutional settlements can be implemented
to ensure a balance of power between rival communities.84
Governments may also
seek to implement a right to secession in a state constitution, which lays out the
process to be undertaken to effect territorial change. Such a measure would signal to
the relevant minority groups that their identity is “respected and worthy of
protection.”85
The implementation of inclusive policies can have a unifying effect to
the benefit of the state, and may also prevent the radicalization of nationalist groups.86
Scotland’s status within the United Kingdom illustrates how a national group can
pursue self-determination within a state structure. The union between the English and
Scottish cultures is one borne out of historical, linguistic and cultural convergence, as
well as mutual economic advantage.87
Active collaboration between these nations is
promoted and is central to determining their common political futures.88
However, the
Scottish culture also enjoys protection via constitutionally defined autonomous

81
Gudmundur Alfredsson, ‘Different Forms of and Claims to the Right of Self-Determination,’ in
Donald Clark and Robert Williamson (eds), Self-Determination (Macmillan Press, London, 1996) 72.
82
Ibid 72
83
Ibid.
84
Daniel Philpott, above n 34, 82.
85
Ibid.
86
Gudmundur Alfredsson, above n 81, 73.
87
88
Ibid 134.

18
powers, and its own separate education, legal and religious institutions.89
When it
comes to secession, the state government has been willing to consider the calls from
segments of the Scottish populous for a vote on independence. In 2013, the
governments of Scotland and the United Kingdom agreed that a referendum should
take place to determine whether Scotland should become an independent country. The
Scottish Independence Referendum Act enabled a referendum on independence to take
place in 2014, with the “No” side ultimately winning.90
Overall, the Scottish nation
has ample scope to pursue national self-determination in the United Kingdom through
a variety of means. The delegation by the state of certain powers, and even a
willingness to allow secession, enables Scotland to preserve its political, social and
cultural distinctiveness while participating in a wider, and mutually beneficial union.
7. Conclusion
There is no question as to the merits of protecting minority rights and allowing
individuals the greatest degree of freedom possible in shaping their political societies.
However, there is much debate over the extent to which groups may pursue national
self-determination within a nation-state. Primary right advocates argue for an
unrestricted right. Notions of liberty, autonomy and political association form the
basis of this approach, whereby individuals may shape the polity to which they
belong. While an attractive notion, an unqualified right to national self-determination
would produce untenable consequences.91
In particular, allowing an unrestricted right
to be held by the multitude of potential nations currently existing within states would

89
Ibid 136.
90
Scottish Independence Referendum Act 2013 (UK).
91
Ernest Gellner, Nations and Nationalism (Cornell University Press, Ithaca, 1983) 2.

19
open up the possibility for a “secessionist free-for-all.” 92
Allowing for the
fragmentation of states, based on the will of a defined people residing within a state,
ignores the claim of the remainder population, including other national groups that
also have a connection to the territory in question. Additionally, allowing a group to
secede from a state does not necessarily put national conflict to rest. The emergence
of new minorities within a secessionist entity gives rise to a whole new set of
potential claims. In response, theorists such as David Miller have devised qualified
theories permitting self-determination via secession, provided that certain criteria are
met. These theories represent an attempt to address the realities of implementing a
right. While Miller holds that national groups have a presumptive claim, it can
nevertheless be defeated by other competing considerations. 93
While qualified
approaches are certainly a more reasoned approach to national self-determination,
theories such as Miller’s are based on broad criteria. I argue that such an imprecise
theory cannot account for the various factors and competing interests in play when a
claim is made. When considering the potential consequences that can come of
exercising a right via secession, it becomes evident that a vaguely defined criteria set
is not feasible.
In consideration of the above, while there should be a right to national self-
determination, it is necessary to limit the use of such a right. Restriction of the right is
justified by the need to balance competing interests at the center of nationalist claims.
It also serves to mitigate against the potentially destructive consequences of
implementing a right. Restriction allows both the protection of the liberty and
autonomy of individuals, as well as preservation of the territorial stability of the

92
Ivor Jennings, The Approach to Self-Government (CUP, Cambridge, 1956) 56.
93
Ibid.

20
international state system. Under this approach, secession as a means of national self-
determination would only be permitted in exceptional circumstances.94
While a
national group may possess a distinct identity and strong connection to a given
territory within a state, they may yet be denied a right to secession. However, these
groups may pursue national self-determination through less disruptive means, such as
autonomy arrangements. Ultimately, responsibility rests with states as well as
international legal and political institutions to ensure the proliferation and
implementation of such measures, so as to provide a number of channels through
which to empower nations.

94

21
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