Abstract
The chapter argues that a significant amount of law has been developed over the past twenty years in order to constitutionalize secession . The legacy of the Canadian Quebec Secession Reference has been remarkable and has permeated, implicitly or explicitly, several legal systems, especially through their courts. However, the legal regulation of secessionist claims has so far been focusing almost exclusively on referendums , often not assisted by additional safeguards against plebiscitary (ab)use. At the same time, the legal regulation of political phenomena, which is the typical trend of constitutionalism , is clearly emerging with regard to secession too, and several instruments are being or can be employed to achieve a more effective, legally guaranteed and democratic comparative constitutional law of secession . Albeit sometimes unaware, these instruments are being developed. In its final session, the paper presents and discusses them.
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Notes
- 1.
Reference Re Secession of Quebec, [1998] 2 S.C.R. 217.
- 2.
Texas v. White, 74 US 700 (1869). It is worth recalling that independence referendums took place in the US Confederate States of Texas, Virginia, Tennessee and Arkansas, where narrow majorities voted for independence in 1861.
- 3.
See in particular, the ruling by the Spanish Constitutional Tribunal no. 42/2014 and 259/2015.
- 4.
The category is of course contested in itself. As pointed out by Mendez and Germann (2018: 143) the term “sovereignty referendum ” usually includes referendums on territorial issues, plebiscites, ethnonational referendums , referendums on the boundary/identity question.
- 5.
This article was specified by a law as late as in 1990, when the dissolution of the Soviet Union was already in place (Bowring 2015).
- 6.
If so requested by the Federal Assembly or by one or both subnational parliaments: Article 1 Constitutional Act 327/1991.
- 7.
According to a poll taken for the government in summer 1992, “only 37 percent of Slovaks and 36 percent of Czechs said they would vote for a split in a referendum , but more than 80 percent said that they considered a break inevitable” https://www.nytimes.com/1992/10/09/world/at-fork-in-road-czechoslovaks-fret.html.
- 8.
It must be recalled that the Provincial Assembly of Kosovo declared independence in 1991, and immediately after a referendum was called, in which 99% of the voters (by a turnout of 87%) supported independence . The whole process was blocked by Serbia. After the NATO military intervention in 1999 and the following international protectorate, Kosovo unilaterally declared independence in February 2008.
- 9.
The total support for independence was 88.5% of eligible voters, 94.8% of those participating. Independence was accordingly proclaimed in 1991.
- 10.
Referendum Bill, 2006. The then Prime Minister Milo Đukanović promised that he would declare unilateral independence if the votes passed 50%, irrespective of the double majority requested by the law mediated by the European Union . The double threshold was however reached, albeit barely.
- 11.
See French Organic law No. 99-209 (1999).
- 12.
See however High Court, Thoburn v. Sunderland City Council (2003), in Common Market Law Reports, 50 and Leyland (2016).
- 13.
Despite the fact that the Iraqi Federal Supreme Court ordered the suspension of the referendum , the President of Iraqi Kurdistan went ahead with the vote on 25 September 2017. By a turnout of 72/, 92.7 of the voters were in favour of independence . The Federal Supreme Court declared the vote unconstitutional the same day and reiterated in November 2017 that Article 1 of the Iraqi constitution prevents any region from seceding (decision in Arabic https://www.iraqfsc.iq/krarat/1/2017/89_fed_2017.pdf).
- 14.
With a turnout of more than 70%, 98.9% of the voters supported the declaration of independence of Gagauzia if Moldova eventually lost its sovereignty , a scenario that could imply the merger of Moldova and Romania into a single sovereign state, an option that is provided for in the Law on the Special Legal Status for Gagauzia from 1994. Similarly, 98.4% of voters said they prefer to tighten ties with Russian-led Customs Union rather than moving towards EU integration.
- 15.
Decision no. 2-rp/2014, case no. 1-13/2014.
- 16.
In 2013, an independentist political party in South Tyrol that currently enjoys support of 7.2% of the electorate organized a referendum on independence from Italy , to which less than 15% of the electorate participated and which resulted in a 92% “yes” vote for independence . In Iraqi Kurdistan, an informal independence referendum was organized by the Kurdistan Referendum Movement, producing an outcome of 99% of votes for independence.
- 17.
Normally, the turnout is low when informal referendums are organized by political parties or movements, while it tends to be high when they are called by subnational governments, such as in the case of Gagauzia (footnote 13) and Iraqi Kurdistan (72.6% turnout, 92.7%). High turnouts were achieved also in the illegal but equally locally organized referendums in Somaliland (2001) and in the Serb enclave of Kraijna in Croatia (1992).
- 18.
Law no. 19/2017, of 6 September, “on the referendum of self-determination ”. Together with law no. 20/2017 (“on juridical transition”), the law was adopted following a special procedure that cuts debate and amending proposal to just one day. For more details Castellà Andreu (2017).
- 19.
STC 114/2017. Subsequent ruling STC 124/2017 outlawed also the Law on transition. For the Court, both laws violated the rights of participation of the minority in parliament and introduced a new legal order against the foundations of the Spanish Constitution without following the procedures for constitutional amendment.
- 20.
According to the Catalan government (22 October 2017), the turnout was 43.03% of the electorate and the support for independence was 92.01% of those who participated in the vote http://www.govern.cat/pres_gov/govern/ca/monografics/303541/govern-trasllada-resultats-definitius-referendum-l1-doctubre-parlament-catalunya.html.
- 21.
Resolution 27 October 2017.
- 22.
See the interesting arguments put forward in the UK Supreme Court’s landmark “Brexit ” case R (Miller) v. Secretary of State for Exiting the European Union (2017) UKSC 5.
- 23.
The support is constantly monitored by the poll center of the Catalan Government (Barómetro de Opinión Pública del Centre d’Estudis d’Opinió) which shows support ranging from 43 to 48% in 2018: see http://ceo.gencat.cat/ca/inici. See also López-Basaguren (2018).
- 24.
CDL-AD(2007)008, esp. paragraphs 51 and 52. See also the Compilation of Venice Commission opinions and reports concerning referendums , CDL (2017)002.
- 25.
On top of several constitutions establishing time limits for, in particular, constitutional reforms, it is worth mentioning Schedule 1 of the Good Friday/Belfast Agreement of 1998. As to the possibility to call for a referendum on unification of Ireland it states: “1. The Secretary of State may by order direct the holding of a poll for the purposes of section 1 on a date specified in the order. 2. […] a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and for part of united Ireland. 3. The Secretary of State shall not make an order under paragraph 1 earlier than seven years after the holding of a previous poll under this Schedule” (emphasis added).
- 26.
Texas v. White, 74 US 700 (1869).
- 27.
Ruling no. 118/2015.
- 28.
BVerfG, 2. Kammer, 2. Senat, decision 16 december 2016—2 BvR 349/16. The decision is as short as 3 sentences. Two of them simply affirm: “in the Fundamental Law there is no place for secession claims of individual Länder. These violate the constitutional order”.
- 29.
See footnote 13.
- 30.
STC 42/2014 and subsequent rulings—see Castellà Andreu (2016).
- 31.
The Spanish Constitutional Court very convincingly explained the rationale of the total revision. In its ruling 48/2003, it stated that the Spanish constitution does not contain any substantive limitation to the amending power (unlike most other European constitutions) and precisely for that it contains a detailed (and extremely rigid) procedure to legally regulate changes that are so significant to substantially modify the basic traits of the current constitution.
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Palermo, F. (2019). Towards a Comparative Constitutional Law of Secession?. In: Delledonne, G., Martinico, G. (eds) The Canadian Contribution to a Comparative Law of Secession. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-03469-6_13
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