Building Anew 437because the right of self- determination was stated (in the Human Rights
Covenants, for example) to be a right belonging to a “people.” Th e idea that
a “people” could have rights in international law, along with states, was not
a new one. It bore a great resemblance to the ideas of the nationality school
of the nineteenth century, with its stress on nations— rather than states— as
the fundamental units of international life. Deciding what constituted a
“people” in the late twentieth century proved, however, to be every bit as dif-
fi cult as deciding what constituted a nation in the earlier period.
Th e diffi culties, moreover, did not end there. Worries— or hopes— arose
that the concept of self- determination might be applied to minority groups
within in de pen dent countries. Still more alarming (to some) was the possi-
bility that it might even extend to conferring a legal right of secession onto
such groups. Governments the world over hastened to forestall any such
radical notion as that. In the 1970 Declaration on Friendly Relations, the
UN General Assembly expressly stated that the right of self- determination
must not be understood as “authorizing or encouraging any action which
would dismember or impair” in de pen dent states.
Th ere was, however, a proviso: that this antisecession understanding ap-
plies to states that possess “a government representing the whole people be-
longing to the territory without distinction as to race, creed or colour.” Th is
caveat has inevitably given rise to a theory that, in states where the govern-
ment is not representative of “the whole people,” oppressed peoples do have
a right to secede. Th is beca me k now n as t he t heor y of “remed ia l ” secession—
meaning secession as a last- resort remedy of a people suff ering oppression,
on a discriminatory basis, at the hands of an unrepresentative government.
Th e theory received some consideration from the Supreme Court of Canada in
1998, when it considered the claim of the province of Quebec to secede from
Canada. Th e Court, however, did not reach a fi rm conclusion, cautiously
stating it to be “unclear” whether such a right exists in international law.
Th e World Court has similarly skirted this delicate question (so far). An
opportunity to expound on the subject was presented to it, following the
promulgation of a unilateral declaration of the in de pen dence of Kosovo,
from Serbia. Th is declaration was adopted in 2008 by the ethnic Albanian
members of the regional assembly of the province of Kosovo. At the initia-
tive of the Serbian government, the UN General Assembly requested an ad-
visory opinion from the Court as to the lawfulness of that declaration. Th e