03 March 2021

A Contemporary Legal Framework for Secession

Contrary to classical doctrine, which sees secession as escaping international legal regulation, a recent PhD thesis demonstrates that secession is a legally determined phenomenon. Júlia Miklasová establishes a general legal framework applicable to secession and uses it to analyse case studies of secession in the post-Soviet space. Critical to the analysis is the tension between the outward appearance of post-Soviet secessionist entities as States and the rejection of such claimed status by the international community. 

Why are you especially interested in the relationship between secession and international law?

As a lawyer specialising in international law, with a previous academic background in Russian and Eastern European studies, I have always found the topic of secession very intriguing. The period encompassing the Soviet Union’s dissolution and the ensuing post-Soviet history has been filled with numerous declarations of independence and attempts to create new States. Some of the resulting post-Soviet secessionist entities, whether Transnistria, Nagorno-Karabakh, South Ossetia or Abkhazia, have existed outside de facto control of the parent State for almost thirty years now. I was particularly drawn to exploring an inherent paradox at the core of their existence: their outward appearance – as independent States – against the prevailing attitude of the international community, which rejects them as States. What is more, I was interested in how this liminal state of affairs affects daily life in these entities. 

How does your thesis explore the paradoxical condition of these entities?

My thesis challenges the view of classical scholarship that sees secession as a purely factual phenomenon unregulated by international law. It explores the extent to which international law is relevant to secession. It does not focus only on the role of international law in determining the status of secessionist entities, but also looks further – to how international law influences different categories of relations of effective entities denied statehood. I call them “illegal secessionist entities”. I examine these questions both generally and through a comprehensive analysis of claims to statehood by post-Soviet secessionist entities: Nagorno-Karabakh, Transnistria, South Ossetia, Abkhazia, the Donetsk and Luhansk People’s Republics, and the so-called Republic of Crimea before its purported accession to the Russian Federation. To reach my conclusions, I extensively analyse the practice of States, whether expressed individually or through international organisations, international and domestic judicial decisions, domestic legislation and doctrine.

What conclusions do you reach?

My thesis cuts across different themes relevant to secession, from the existence of the right to secede to the role of referenda or facts in secession. However, I would highlight one aspect that seems to be the most consequential for contemporary secessionist struggles. While international law does not generally prohibit secession because of its unilateral character only, there are certain special situations when secession is in fact prohibited. For example, it is prohibited when secessionists achieve de facto separation thanks to the use of force by a third State. In such situations, the status of statehood is denied, and other States are obliged not to recognise such an entity as a State. But this is not all; as my thesis demonstrates, the effects of this original violation spill over and continue to impact the relations of “illegal secessionist entities”. The result is a fascinating and complex web of normative interactions where consequences of the original violation, including the duty of non-recognition, intersect with the purported acts of these entities, as well as with other regimes, such as human rights law or law of occupation. My thesis demonstrates that the legal consequences of this original violation are rather expansive, thereby highlighting the role of international public order in this area; this is a far cry from the classical position, which sees secession as outside the reach of international law. 

Can you give examples of legal issues that follow from this relevance of international law to secession?

There is a full range of concrete legal issues that my thesis examines. Among them, I would highlight the applicability of the European Convention on Human Rights in the context of illegal secessionist entities or the question of the validity of property transfers taking place in these entities, including the nationalisation or privatisation of assets by the secessionist authorities – this is a topic that had not yet been comprehensively analysed in this context. 

Many issues related to secession in the post-Soviet space are currently being litigated before international courts and tribunals. I hope that apart from theoretical contributions, my thesis will also be a useful guide for legal practitioners.

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Júlia Miklasová defended her PhD thesis in International Law in October 2020. Professor Zachary Douglas presided the committee, which included Professor Marcelo Kohen, supervisor, and Angelika Nußberger, Professor at the Institute of Eastern European and Comparative Law of the University of Cologne, Germany.

Full citation of the PhD thesis:
Miklasová, Júlia. “Secession in Contemporary International Law with a Special Reference to the Post-Soviet Space.” PhD thesis, Graduate Institute of International and Development Studies, Geneva, 2021.

For access, please contact Dr Miklasová

Banner picture: excerpt from an image by WiP-Studio/
Interview by Nathalie Tanner, Research Office.