Secession in federal systems: voice versus exit

post-graduate student, lecturer of Law Reviewer: Serghei ŢURCAN, Ph.D., associate professor The way in which to accommodate the interests of a group with those of an entire nation has confounded constitutionalists, constitution-makers, minority rights advocates and also international lawyers for a long time. National government is not necessarily the best or the only level of government where the accommodation of group interests can take place. At the national level, group interests may become overridden by the needs and concerns of the majority, while the capacity at local government level to respond to the needs of the group may be limited, especially in terms of the powers required to bring about the accommodation between the group and the national entity.

This thesis is an essay in constitutional theory and the concept of law. Narrowly framed, the study addresses whether and to what extent constitutional law makes provision for secession. What place does secession have, or should it have, under municipal constitutional law? Of course, whether secession indeed occupies some place under a constitutional system depends very much on the text of any given constitutional document and the current body of constitutional law and norms. It suggests a factual enquiry, a matter for descriptive jurisprudence. Inasmuch as this consideration quickly gives way to a more searching enquiry, it would seem to engage aspects of political theory more so than of legal theory. The absence of specific constitutional provisions and norms regarding secession, and the practical nature of secession as state-making and -breaking lead to a not unjustifiable predilection to treat secession as a question of purely political theory. State-breaking and state-making arguably are political matters antecedent to and beyond the reach of law.

Like many other social and political phenomena, secession has been a subject of inquiry by separate and often unrelated disciplines: legal studies, political science and applied philosophy. This diversity of approaches to secession has yielded different and sometimes incompatible definitions of secession. All definitions however agree that secession involves the creation of a new state by the withdrawal of a territory and its populations from an existing state. Restrictive definitions tend to restrict secessions to withdrawals carried out by force, or threat thereof, or to withdrawals subject to the rational choice of secessionists and host states. Permissive definitions allow almost any withdrawal of territory/population, including decolonization, to count as secession. Many legal scholars and a few political scientists advocate restrictive definitions; but there are also scholars from both disciplines who advocate permissive definitions, with similar or the same scope. Permissive definitions seem to suggest that it is not secessions that should be morally assessed but the ways in which they are carried out or the means used to do so; in contrast, restrictive definitions suggest that there are too few secessions to worry about moral assessments. Normative theorists of secession, who aim at a moral assessment of secessions from a philosophical perspective, pay no attention to these suggestions; they usually adopt permissive definitions which would allow them to apply universal moral norms to a variety of secessions. The common ground between the definitions of secession found in legal scholarship, political science and normative theory, it is argued here, may be thus found in permissive approaches to the definition of secession.

Przegląd Prawniczy Uniwersytetu im. Adama Mickiewicza, 2019

The aims of this contribution is to check the validity of the old theory, which goes back to Jellinek but is still dominant, which states that secession as well as the process of forming a new state, fall under the scope of a “simple fact” and thereby escape through definition to any law of way. According to this theory, secession is not a question of “Law” but a question of pure fact, failure or success: if a secessionist movement succeeds in establishing a new effectiveness, that is to say, puts in place the “Constituent elements” of a state, a new state is born. It is interesting to observe that with the phenomenon of the rise or the collapse of States, from the global perspective of international order and especially from the point of view of international law, the States concerned are, in practice, not simply left to their fate. On the contrary, the rise or the collapse of a State anywhere in the world is seen as a matter of concern for the international community, since the in...

Constitutional Law and Politics of Secession, 2023

To build legitimate and successful secession claims and strategies, both moral and legal arguments are, and should be, important. As regards moral reasoning, a nuanced primary theory of secession with remedial features is presented. With respect to the legal field, the remedial logic of general international law is distinguished from that of constitutional law. Constitutionalizing a qualified primary right to secede is then defended with the aim of fostering multinational accommodation and, ultimately, consensual secession. Legal barriers to secede, and the legitimate ends they may have, will be analyzed. Although the legal regulation of secession is often partial and defective, legality must be taken seriously in liberal-democratic settings. Among other reasons, we will argue that this is due to legality being closely connected to feasibility and responsibility.

2015

Self-determination and territorial integrity. Achieving independence. Secession in State practice.

The aim of this paper is to analyze scope of the right to self-determination and its implication on the sovereign right of States. It examines whether the right to self-determination and the principle of territorial integrity could serve as a legal basis to legitimatize or prohibit unilateral secession in a non-colonial context under international law. For this end, relevant sources of international law and controversial conceptions of different scholars and judges on the issue were analyzed based on qualitative method of documentary analysis. By doing so, the paper find out that, because of inadequacy and lack of clarity in the rules of international law governing people's right of self-determination, there are two strong opposing arguments on the legality of unilateral secession. The paper, nevertheless, argues that while international law in its principle of territorial integrity of states discourages unilateral secession it does not totally prohibit it. The paper argues that the right to self-determination encompasses a conditional right to unilateral secession. That means, in case of discrimination and denial of equal right of the people, external self-determination – unilateral secession – is permissible and it works as a limitation to the territorial integrity of a state. However, based on strength of the contrary argument on the issue and its current contribution to the disruption of world peace and security, the paper also recognizes inadequacy of international law rules governing unilateral secession. Therefore, it recommends for, in the short term, clarity on the existing rules by UN judicial organ or political organs and in the much longer term, adoption of an international treaty that regulates the matter of unilateral secession.

2021

This book analyses the complex phenomenon of secession as a form of creation of States from the perspective of international law. As opposed to other approaches based on the analysis of the political foundation of the secessionist processes or on the construction of a legal basis that justifies the existing practice, the aim is to provide an explanation of secession as a practice covered neither by the legal regime of the United Nations for the self-determination of colonial peoples nor by the regulations and guidelines relating to the human rights of minorities and indigenous populations, both in the UN and in regional organisations (Organization of American States, Council of Europe or African Union). It is stated that secession is a practice that does not comply with international peremptory normssuch as those that prohibit going against the territorial integrity of the States, the use of force or intervention in the internal affairs of other States. Even being aware of the inevitable consequences of the effective creation of States and other de facto entities on trade relations, communications and the rights of individuals, among other matters, secession is a practice that should lead to an obligation of nonrecognition by States and by international organisations. As an example of this practice, the secessionist process in Catalonia since 2014 is explained and studied.

Party Politics, 2013

The literature on regionalist parties has traditionally focused on the origins of their electoral strength while their ideology remains an under-explored aspect of territorial party politics. This is surprising because for the question of whether decentralization ‘accommodates’ or ‘empowers’ regionalist pressure one needs to consider both. In this paper we single out the factors that increase the probability of adopting a radical (secessionist) as opposed to a moderate (autonomist) ideological stance, with a particular focus on the effect of decentralization. We make use of a large and original dataset, covering 11 countries, 49 regions, and 78 parties for the 1940s–2000s. Beyond the level of decentralization and decentralization reforms, we analyze the impact of two sets of factors: the first concerns regional identity and includes regional language, regional history and geographical remoteness; while the second concerns institutional/political variables which include voting system...

2005

Secession is a withdrawal of persons, space, and goods from the jurisdiction of the original governing unit. Let the seceding entity be called the" new realm" and the entity it withdraws from be called the" old realm." Such withdrawal and disassociation implies issues of ethics, governance, and economics that are interrelated, and are most meaningfully treated as an integrated foundational theory of secession. This foundation creates a benchmark, which can be applied flexibly to actual ethnic and territorial conflicts.

International Journal on Minority and Group Rights, 2017

The 20th century can be qualified as the century of self-determination. Both politically as legally, the concept of self-determination formed the most important justification for quests for territorial changes. In the present contribution, the many meanings of self-determination and its relationship with the concept of autonomy and with minority rights shall be examined. It shall be shown that although no right to secession outside the colonial context can be discerned the claims for secession to be heard in several parts of Europe are nonetheless of considerable relevance for international law. And contrary to what is mostly held to allow such claims to be expressed may eventually even strengthen state sovereignty.

Rivista di Diritti comparati, 2019

Journal article, 2014

A look at the field of international politics reveal that many countries are plagued by secessionist agitations by component units of the State such as the case Biafra in Nigeria, Scotland in United Kingdom, Quebec in Canada, Catalonia in Spain etc. These secessionist agitations across the globe have had negative consequences on international peace and security. For instance, the secession of South Sudan from Sudan and Kosovo from Serbia were marred by war and armed conflicts. Similarly, armed conflict arose from the secession of Crimea from Ukraine. The question therefore is whether international law supports the secession of any group within a State without the consent of the parent State. In view of the above, this paper appraised the position of international law on secession and its relationship with the right of peoples to self-determination. The paper concluded that judging from available doctrines of international law and works of scholars and jurists in this area, that international law does not confer on any group within a State the right to secede. This finding is supported principally by the doctrine of sovereignty and territorial integrity of States. The paper also examined the potency of the argument of some secessionist groups that have anchored their claim of a right to secession on the right of peoples to self-determination. It is further submitted that that despite vesting all peoples with the right to self-determination, such right does not confer a general right to secession in international law. Thus, it is submitted that there is no right to secession in international law. However, the paper noted that some scholars have made strong case for the recognition of a limited right to secession under certain circumstances such as when the group in question has been subjected to immense oppression by the parent state. The argument being that, the parent state by its acts of oppression has shown its inability to protect that group of people within the framework of the existing State. Hence, justifying secession as an exercise of the right to self-determination. This argument was used to justify the case of Kosovo, however it lacks universal application and acceptance.