Abstract

The collapse of the Soviet Union, the break-up of Yugoslavia, the conflicts in places like Kosovo, Kashmir and Indonesia, and the possibility of another referendum in Quebec, all draw attention to the urgent need for a satisfactory account of the conditions under which a minority within a state is entitled to secede. The various elements of such a theory have been explored by authors such as Daniel Phillpott, Christopher Wellman, Donald Horowitz, Joseph Raz, Kai Nielsen, Wayne Norman and others. A number of authors have spoken of the need for an "institutional" theory of secession. ;The following dissertation argues that there are at least two distinct concepts of legitimacy, which can be characterized as a legal and a political standard of legitimacy. The political standard is based on consent and has been extensively discussed. The legal standard is based on moral principles, rather than agreement, which allow us to determine whether the positive law is legally enforceable. Although the dissertation examines the relationship between the two concepts of legitimacy, it focuses on the legal standard, which has not received significant attention in the academic literature. ;The dissertation then turns to the notion of legality and argues that it is not possible to develop a legal theory of secession without altering the traditional concept of sovereignty to encompass the possibility of a legal order above the sovereign power. Although we are a long ways from a consensus, the international community now accepts that it has a general obligation to protect the fundamental rights of individuals in oppressive states. Allen Buchanan has already argued that the privileges and prerogatives of sovereignty should not be accorded to illegitimate states, which contravene fundamental human rights. ;The dissertation provides the outline of a legal theory of secession, which would bring contested claims within the purview of an international court. This would provide the basis for a court to rule on the validity of the state's title to the sovereign power and the validity of any act of secession. This calls for the development of a more formal concept of legitimacy, which would allow an international court to distinguish between legitimate and illegitimate states. The later chapters consider some of the technical, procedural and evidentiary issues that would arise in establishing a cause of action in oppression