Which takes precedence: International Right of Self-Determination, or Country's Constitution?

Question

In Brazil there's a movement, named Sul Livre (Free South), that claims for the independence of the country's Southern states. And this is not the only one: there are a lot of similar movements that claim independence of some state or region, but this one is specially featured because there are historic issues about independent movements in the states of Santa Catarina and Rio Grande do Sul, that led to a major war in the Brazilian empire times, plus a lot of disagreement in this region about federal tax collection and distribution, and a lot of other major issues.

On one side, the self-determination of the people is understood, in light of international law, as a peremptory norm (jus cogens).

On the other side, Brazil's constitution says, in its first article, that "The Federative Republic of Brazil, formed by the indissoluble union of the states and municipalities and of the federal district, is a legal democratic state [...]"

Considering the long historic of repression of independence movements in Brazil (only two in dozens of them succeeded in the last 500 years, one of those being Brazil's own independence); plus the fact that the Free South movement itself was forbidden and the first engaged people imprisoned during the military rule, it's probable that if asked our Supreme Court would decide in favor of the constitution.

Which of the two principles takes proper precedence? Is there any case law that might illuminate the question, or historic examples that show one or the other option being more "correct?"

Answer 1

Here's a historical example of this conflict.

The Supreme Court of Canada in Reference re Secession of Quebec held that:

In the circumstances, the "National Assembly, the legislature or the government of Quebec" do not enjoy a right at international law to effect the secession of Quebec from Canada unilaterally.

They also address practicality of a de facto unilateral separation:

Although there is no right, under the Constitution or at international law, to unilateral secession, the possibility of an unconstitutional declaration of secession leading to a de facto secession is not ruled out. The ultimate success of such a secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of Quebec and Canada, in determining whether to grant or withhold recognition. Even if granted, such recognition would not, however, provide any retroactive justification for the act of secession, either under the Constitution of Canada or at international law.

Since the court found that international law and the Canadian Constitution both agree that Quebec cannot secede unilaterally, there was no need to get to the question of which one preempts the other:

[...] there is no conflict between domestic and international law to be addressed [...]

This resulted in the Clarity Act, which recognizes what I mention above:

the Supreme Court of Canada has confirmed that there is no right, under international law or under the Constitution of Canada, for the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally

The act sets out out the conditions under which the Government of Canada would recognize a province's desire to secede (a clear question must presented to the people, where the "clarity" of the question is decided by the House of Commons). It also broadly prescribes how the secession negotiations will proceed.

Answer 2

If a nation's constitution does not allow a legal means of secession, then the only possibility would be to appeal to a multi-national judicial body, but such bodies have negligible power to enforce. While numerous organizations recognise a generalized right to self-determination (for example the UN has declared that "all peoples have the right to self-determination"), this does not automatically translate into an internationally-recognized right to illegal secession. The International Court of Justice deftly avoided any finding on whether Kosovo had a right to secede, and there is no generally recognised (or denied) "right to secede". There are certain conditions under which one would have support for a claim to legal secession, for example peoples subject to decolonization, the territory was invaded / annexed after 1945, or the state flagrantly violates the rights of those peoples concerned. The "decolonization" angle has been applied to Somaliland (the premise being that the merger of British and Italian colonies into the nation of Somalia was invalid). The use of "peoples" reflect the importance of some sort of ethic division, which becomes a matter of controversy.

There is reading on the topic, for example:

• Secession: State Practice and International Law after the Dissolution of the Soviet Union and Yugoslavia
• Secession (Bibliography by Theodore Christakis)
• The Remedial Right of Secession in International Law

Answer 3

It is important to understand that international law is more dictated by custom than by actual laws.

It is customary for nations to enter into agreements with the intention of complying with those agreements. But nations are ultimately sovereign entities, solely responsible for judging their own compliance. International law is nothing more than these agreements. If a nation's court of last resort rules a certain way, there is no higher body before which the dispute may be brought, absent the consent of the nation. In theory, the International Court of Justice could try the case in absentia (i.e. without the involvement of the nation), but there would be no point, since the judgment would not be practically enforceable. As such, the ICJ doesn't even bother doing this, and will generally only try these cases with the consent of all nations involved.

Answer 4

the self-determination of the people is understood, in light of international law, as a peremptory norm (jus cogens)

Well, yes and no.

The declaration itself is specifically drafted in connection to the decolonialisation that was occurring at that time (1960) and it is arguable that it doesn't apply to "peoples" who are not ruled by an "alien" power. Specifically, "peoples" in a pluralistic, democratic nation that enjoy the same legal and political rights as all other citizens may find difficulty in arguing that they were subject to an "alien" power.

The concept of "peoples" is also subject to some level of legal difficulty as it is a heap paradox. Clearly 1 person who wants to secede is not a "people", and equally clearly if all the citizens of a state want to secede then they are "people": so how big does a group of secessionists have to become in order to be a "people"?

In addition, international law also recognises the right of sovereign nations to govern their own internal affairs; even in ways that infringe on internationally accepted human rights. In general, there is always tension within a legal system - some laws push one way and others in a different way; this is one of the things that leads to a legal system needing courts; if the law were clear to everyone they would be superfluous. However, the problem with clear laws is that the second the world changes the laws need to be updated.

As it stands, the Brazilian constitution forbids secession. I am guessing that the highest court in Brazil is a creature of that constitution and would be bound to follow it.

Historical Precedents

Another answer has indicated that secession of a Canadian province is unlawful and would remain unlawful even if it happened unilaterally and was subsequently accepted by Canada and the international community. That is, it would be the exact same situation that the American Declaration of Independence created: an unlawful rebellion that remained unlawful even though the independence of the United States was accepted by Britain and the international community subsequently. Indeed, it is the same situation that arose when the Confederate States of America unilaterally seceded even though the outcome was different.

In more recent times, secessionist movements in places like Quebec, Scotland and the UK (secession from the EU) have attempted to progress the mater through legal methods. First, by holding plebiscites to determine if there was sufficient local support. All of these, so far, have shown insufficient support and so the matter of what happens next has not had to be considered. Presumably, it would then have fallen to the larger entity whether to support or oppose legal secession and if the former, changing laws and constitutions to enable it.