Abstract
Although contemporary constitutions do not tend to recognize any right to secede, several exceptions are presented in this chapter. A qualified constitutional right to secede, as a special type of constitutional amending procedure, is defended with the aim of fostering consensual secession, recognition and accommodation of national pluralism, cooperation and compromise between majority and minority nations, and multinational integration and stability.
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Notes
- 1.
Venice Commission, Self-Determination and Secession in Constitutional Law, 1999. Mancini, S. “Secession and Self-Determination”, p. 481. Monahan, P.J.; Bryant, M.J. Coming to Terms…, pp. 5–11. Argullol, E.; Velasco, C. (dir.) Institutions and Powers in Decentralized Countries, § III (6). Weill, R. “Secession... Worldwide”, pp. 905–89.
- 2.
After a provisional government of the Eritrean People’s Liberation Front (1991), Eritrea held a referendum on independence under international observation and became a UN Member State (1993). “Eritrea asserted its independence from Ethiopia in 1993, following a United Nations supervised referendum in which over 99 per cent of voters favoured this result”. Oduntan, G. International Law and Boundary Disputes in Africa, p. 181. The independence of Eritrea and the constitutional recognition of the right to secede could be the result of an alliance between Eritrean and other Ethiopian forces to fight together against the military regime in Addis Ababa. Remiro, A; et al. Derecho Internacional, p. 193. Thus, Ethiopia’s secession clause may serve a cohesive purpose. Mancini, S. “Secession and Self-Determination”, p. 495.
- 3.
This constitutional provision grants Nevis a unilateral right to secede which requires approval by Parliament first, by not less than two-thirds of all the votes, followed by further approval by referendum by not less than two-thirds of all the valid votes cast by citizens of Nevis who have the right to vote for the representatives of Nevis. Moreover, a new draft Constitution of Nevis must be submitted to its citizens before the referendum is held. Constitutionally, no specific role is reserved for the federal Parliament. In 1998, 61.7% of the electorate of the Island of Nevis voted in favour of secession, short of the two-thirds majority required. Norman, W. Negotiating Nationalism, p. 176. Norman, W. “From quid pro quo to modus vivendi…”, pp. 188–202.
- 4.
See Venice Commission, Opinion on the Amendments to the Constitution of Liechtenstein…, 2002, par. 36–9.
- 5.
Interestingly, this right of withdrawalfrom the EU is inspired by Article I-60 TCE of the failed Treaty establishing a Constitution for Europe. Once a Member State starts the exit process, the right to leave is tied to a consensual procedure in which all the leading political institutions of the EU take part (the European Council sets the guidelines for the agreement, the Commission nominates the negotiator and the Council approves the agreement by qualified majority after approval by the European Parliament). Therefore, in the first instance, this would not be a secession resulting merely from the unilateral will of the Member State. Presumably, the EU would have a duty to negotiate in good faith and reach agreement on the withdrawal. Under Article 50.3 TEU, if the negotiations fail to produce a result, the Member State could secede unilaterally after two years. The right to withdraw in Article 50 is consistent with several points of this book’s theory of secession. First, EU law aims at union and integration but expressly regulates a right to exit. In a similar vein, constitutional law may seek union and, at the same time, recognize secession. Second, Article 50 TEU shows that the hypothetical multinational contract may not be so far from reality, despite the former being a right to secede of Member States and the latter endorsing a right to secede of minority nations. Third, Article 50 is also a positive legal implementation of the Principle ofagreement and negotiation. Although it is coherent that failure of an agreed solution to withdraw should lead to a unilateral right to secede, patience, compromise, stability and legal certainty are of paramount importance. See Bossacoma, P. Secesión e integración, § 3. Bossacoma, P. Sovereignty in Europe, § 5. Hillion, C. “Leaving the European Union, the Union way”.
- 6.
The Northern Ireland Act 1998 is one of the devolution Acts, which are considered part of the territorial constitution of the UK. According to Schedule 1(2) of the Act, the Secretary of State for Northern Ireland (a British Government minister) shall exercise his power to call a referendum “if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland”. Some see this regulation as an example of constitutionalization of a right to secede. Norman, W. Negotiating Nationalism, p. 176. Norman, W. “From quid pro quo to modus vivendi…”, p. 188–9. However, according to this book’s terminology, it should be considered a right of external self-determination and, specifically, of a right of redemption. See ch. 1.
- 7.
That is to say, Gagauzia may secede if Moldova integrates or associates with Romania. See Venice Commission, Opinion on the Law on Modification and Addition in the Constitution of the Republic of Moldova in particular concerning the Status of Gagauzia, 2002.
- 8.
Article 1 of the Constitution of the Republic of Karakalpakstan also enshrines the sovereignty of this Republic and its right to secede from the Republic of Uzbekistan. Although the right to secede shall be based on a referendum “held by the people of Karakalpakstan”, Article 78.6 of the Constitution of Uzbekistan seems to grant a last word to the central legislature on the “approval of decisions to secede from the Republic of Uzbekistan”. In addition, some contend that as long as Uzbekistan remains an autocracy, the right to secede is nominal. See Roeder, P.G. Where Nation-States Come From, p. 67.
- 9.
According to this provision, if a decision to secede is taken, negotiations to introduce independence shall start between the Danish Government and the Greenland Government. The resulting agreement shall have the consent of the Parliament of Greenland and be endorsed by a referendum in Greenland. The agreement shall finally be consented by the Danish Parliament. Beyond Section 21, the Preamble recognizes the people of Greenland as holder of the international right to self-determination. See Gad, U. “Greenland”, pp. 98–118.
- 10.
A referendum on full sovereignty and independence of New Caledonia was held on 4 November 2018 (about 56% against and 44% in favour of independence). See Title 9 of the organic statute 209 of 19 March 1999 on New Caledonia. Beyond this case, Article 53 of the French Constitution has been interpreted broadly to allow self-determination and secession referendums regarding other overseas territories.
- 11.
As the Constitution mandated, the National Legislature promulgated the Southern Sudan Referendum Act 2009. The referendum was held in January 2011 and an overwhelming majority voted for secession. See The Carter Center, Observing the 2011 Referendum on the Self-Determination of Southern Sudan. Final Report. See also §§ 11.2 and 11.3.
- 12.
- 13.
See § 5.2.
- 14.
On the requirements that Stalin demanded of the republics in order to secede, see § 2.7.
- 15.
Article 72 of the Soviet Constitution of 1977 was developed by the Law on Procedure for Resolving Questions Connected with a Union Republic’s Secession from the USSR (3 April 1990). It was a remarkably thorough legislation on the external right to secede of sub-State units (detailed regulation on borders, personal property, citizenship, human rights, protection of minorities, extradition, administration, criminal cases, etc.). However, the democratic requirements for exercising the right were too demanding: (1) a majority of two-thirds of the population resident in the seceding territory was required in a first referendum on secession; (2) there would be a five-year transition period during which the Supreme Soviet or one-tenth of the permanent residents in the territory could demand another referendum that would once again require a qualified majority of two-thirds; (3) even if the majorities required were reached, the secession would be submitted for negotiation and ratification by the Federation; (4) if this majority of two-thirds was not reached, secession could not be resubmitted to a referendum for a minimum of ten years; (5) the territories within the seceding republic that wished to remain part of the Soviet Federation had the right to hold a referendum to stay within the Federation. In spite of the merits of this Law on secession, it was never applied partly because of the above-mentioned insurmountable hurdles. See Cassese, A. Self-Determination of Peoples, pp. 264–8.
- 16.
This right to secede was granted solely to the States of Shan and of Kayah. Buchheit, L.C. Secession, p. 100. Breen, M.G. “Asymmetry… in Myanmar” in Popelier, P.; Sahadžić, M. (ed.) Constitutional Asymmetry in Multinational Federalism, p. 356. Article 10 of the current Constitution of Myanmar of 2008 prohibits the secession of Regions, States, Union Territories and Self-Administered Areas. Raič, D. Statehood and the Law of Self-Determination, p. 313. Mancini says that the 1974 Constitution of Burma includes a secession clause, but no such clause has been found in this constitutional text. Mancini, S. “Secession and Self-Determination”, p. 495. She might mean the 1947 Constitution, as the 1974 Constitution, according to Buchheit, removed this “unique attempt to define a substantive right of secession and the procedural rules for exercising the right”.
- 17.
However, this seemed to be socialist rhetoric devoid of real constitutional normativity. This was a communist strategy to take power. Once in power, the right to secede was no longer interesting. Buchheit, L.C. Secession, pp. 101–2. Article 4 of the current Chinese Constitution of 1982 prohibits all acts that could impair unity or instigate secession.
- 18.
Yet, Article 5 of the Constitution stipulated that the frontiers of the Federation could not be altered without the consent of all the republics and self-governing provinces. See Raič, D. Statehood and the Law of Self-Determination, pp. 313–4.
- 19.
“In the 1920 Constitution, the principle of national self-determination was mentioned only once, in the preamble. In the 1968 Constitution, by contrast, it was invoked in the preamble as well as in Article 1. In the preamble, it was mentioned twice: ‘We, the Czech and Slovak nation, (…) recognizing the inalienable right to self-determination even to the point of secession, and respecting the sovereignty of every nation (…), convinced that a voluntary federal union is an appropriate expression of the right to self-determination and equality, (…) decided to form a Czechoslovak federation.’ According to Article 1, ‘The foundation of the Czechoslovak Socialist Republic is a voluntary union of the equal nation-states of the Czech and Slovak nation, based on the right to self-determination of each nation.’ (…) The preamble of the 1938 Constitutional amendment recognized the Slovaks as a separate and sovereign nation, but did not explicitly invoke the principle of national self-determination, although it was implied: ‘The Parliament, departing from the fact that the Czechoslovak republic originated through an agreement of the sovereign wills of two equal nations…’”. Bakke, E. “The principle of national self-determination in Czechoslovak constitutions 1920–1992”, p. 5. Saiz Arnaiz, A. “Constitución y secesión”, p. 3.
- 20.
See ch. 12.
- 21.
Buchanan, A. Secession, p. 9. This information cannot be corroborated. No right to secede has been noticed in the Federal Constitution of Malaysia and many deny the presence of any such constitutional right. See, for instance, Mokhtar, K.A. “Confusion, Coercion and Compromise in Malaysian Federalism”, in Hardin, A.J.; Chin, J. (ed.) 50 Years of Malaysia, pp. 220–65. However, as will be discussed in ch. 12, the separation of Singapore from the Federation of Malaysia took place in 1965.
- 22.
This passage of Cicero’s can be found in De Re Publica, in note 46 to book 3: “Debet enim constituta sic esse civitas ut æterna sit.” Following Cicero, the death of a society is considered a penalty or punishment for it.
- 23.
Sunstein takes inspiration from the Madisonian spirit that encourages constitutional provisions to prevent the defeat of the basic enterprise. Sunstein, C.R. “Constitutionalism and Secession”, pp. 633–4.
- 24.
Buchheit, L.C. Secession, p. 111, note 269.
- 25.
Kelsen, H. Teoría General del Estado, p. 377.
- 26.
Saiz Arnaiz, A. “Constitución y secesión”, p. 5.
- 27.
Kelsen, H. Teoría General del Estado, p. 376. In Kelsen’s opinion, interpreting an essential eternity or perpetuity would be falling into jusnaturalist reasoning. On the other side, according to him, establishing a right to secede with no conditions and no limits would go beyond the borders of the realm of law. It would be a kind of rule that would say “enforce (federal law) if you want”. A so-called rule that says “you shall do what you want” would not be law, according to Kelsen. Generally, law and legal norms must impose a certain dualism between the “is” and the “shall be”, between reality and normative mandate. Yet, in the creation of new States, special normative relevance is attached to the factual. In other words, neither is the law extraneous to or independent of the facts, nor do the facts automatically and unconditionally become law.
- 28.
See Kymlicka, W. Politics in the Vernacular, p. 119.
- 29.
See Rousseau, The Social Contract, book III, ch. XI, p. 45.
- 30.
Weinstock, D. “Constitutionalizing the Right to Secede”, p. 194. Norman, W. Negotiating Nationalism, p. 202. Norman, W. “From quid pro quo to modus vivendi…”, pp. 186, 200–1.
- 31.
Eternity clauses are constitutional provisions establishing that certain matters, parts, articles or principles cannot be amended. In other words, they are supra-constitutionality clauses that petrify certain substantive issues of the constitution. See Roznai, Y. Unconstitutional Constitutional Amendments. Let us explore some examples: the Bonn Basic Law (German Constitution) sets many limits to constitutional reform on the matters of federalism, participation by the Länder in the legislative process, human dignity and other principles regarding basic rights (Article 79.3). The Federal Constitutional Court has declared itself competent to review the substance of constitutional amendments, but has never struck down a single one. The 1958 Constitution of the Fifth Republic of France contains an eternity clause relating to the republican form of government (Article 89.5). Conversely, it does not contain an eternity clause on territorial integrity, but simply a temporary limit or circumstantial conditions for revision of the Constitution (Article 89.4). The French Constitutional Council has ruled that the constituent power is sovereign, except for the material limit set in Article 89.5 and the temporary limits in Articles 7, 16 and 89.4 (Decision of the Constitutional Council of 2 September 1992, Maastricht II, par. 19). The Italian Constitution expressly establishes the eternity of the republican form of government (Article 139). In addition, the Constitutional Court Judgement 1146 of 1988 warned that there are some supreme constitutional principles and values that cannot be amended by constitutional reform or any other constitutional statute. In this respect, the Court declared itself competent to review constitutional amendments and constitutional laws that go against the supreme constitutional principles. Specifying the Judgement of 1988, the later Judgement 118 of 2015 seems to understand that there is an implicit eternity clause to protect the unity of Italy. The Portuguese Constitution includes a long list of principles that any constitutional reform must respect such as the national independence and unity of the State (Article 288). Paradoxically, this constitutional provision has been amended before (formerly Article 290). Article 152.1 of the Romanian Constitution establishes an eternity clause to protect the national, independent, unitary and indivisible character of the Romanian State, among other issues. Article 157 of the Ukrainian Constitution stipulates an eternity clause to protect human rights and both the independence and territorial integrity of Ukraine. Nonetheless, Article 73 provides that “alterations to the territory of Ukraine shall be resolved exclusively by the All-Ukrainian referendum”. See Ukrainian Constitutional Court Judgement of 14 March 2014. Roznai, Y; Suteu, S. “The Eternal Territory?”, pp. 542–80.
- 32.
See Dicey, A.V. Introduction to… the Law of the Constitution, pp. 129–31. Spanish constitutional history seems to indicate that the more rigid the procedure to amend the Constitution was, the less the Constitution lasted. Muñoz Machado, S. Vieja y nueva Constitución, p. 76.
- 33.
See ch. 6.
- 34.
- 35.
See Vaubel, R. “Secession in the European Union”.
- 36.
See § 2.3.
- 37.
While it seems wiser to express substantive issues in the form of principles, rules might perhaps be more appropriate for procedural issues. Yet, if substantive issues are regulated by principles, designing very specific procedural rules can be complicated. What is more, remember that even secession requisites such as clear majorities could depend on practical issues such as the relative wealth of the minority nations compared to that of the parent State. See § 3.4.
- 38.
Nevertheless, those who wish to define the nation constitutionally could draw inspiration from the above-mentioned Article 39 of the Ethiopian Constitution.
- 39.
See Saiz Arnaiz, A. “Constitución y secesión”.
- 40.
The Lega Nord and its Padanian nationalism could be mentioned as an empirical example of using a threat of secession to achieve a federal fiscal system and to reduce the solidarity with the south of Italy. “A critical mass of supporters of the movement had no real interest in seceding from Italy, but rather wanted to reform the system (…) in order to reduce the ‘subsidizing’ of the south”. Norman, W. Negotiating Nationalism, pp. 206–7. Norman, W. “From quid pro quo to modus vivendi…”, p. 203. Padania—for some an imaginary nation resulting from economic interests, for others a nation in the making or re-definition phase—would be formed by rich northern regions of Italy. This is not, however, a sufficiently representative case to build a theory around it. On this topic, Keating stated: “Nationality may be a slippery term and nations very difficult to identify using objective criteria; but there is a sociological difference between communities that have developed strong forms of collective political identity and a historical narrative to underpin it and mere communities of convenience. The distinction is clearer in some contexts than in others, but it is not difficult to distinguish between Scotland and the ‘nation’ of Padania, invented by the Italian Lega Nord”. Keating, M. The Independence of Scotland, pp. 80–1.
- 41.
Sunstein, C.R. “Constitutionalism and Secession”, pp. 634–43. Sunstein, C.R. Designing Democracy, pp. 96–105.
- 42.
Although Sunstein and Buchanan share a fear of the threat of secession, the latter defends the constitutionalization of the right to secede subject to certain requirements that would be difficult to meet in order to disable the threat. Nevertheless, the Soviet constitutionalization and regulation of the right to secede show that, if the requirements are set too high, secessionist groups resort to the factuality and morality of secession instead of appealing to the internal legal right at issue.
- 43.
Mancini, S. “Secession and Self-Determination”, p. 495. Weinstock, D. “Constitutionalizing the Right to Secede”, p. 196.
- 44.
Wellman, C.H. A Theory of Secession, p. 131. On the priority of right over aggregated utility under justice as fairness, see § 3.4.
- 45.
Sunstein, C.R. “Constitutionalism and Secession”, pp. 634–5, note 8.
- 46.
Birch. A.H. “Another Liberal Theory of Secession”, pp. 598–9.
- 47.
Buchheit, L.C. Secession, p. 109. Sunstein, C.R. “Constitutionalism and Secession”, p. 657. Along similar lines, Jefferson considered that “nothing is unchangeable but the inherent and unalienable rights of man” (among which he included the rights to resistance and revolution). Arendt, H. On Revolution, pp. 223–5.
- 48.
In similar vein, see Norman, W. Negotiating Nationalism, pp. 204–7. Norman, W. “From quid pro quo to modus vivendi…”, p. 195.
- 49.
See Wellman, C.H. A Theory of Secession, ch. 6.
- 50.
See Lijphart, A. Patterns of Democracy. Even the British model of majoritarian democracy, despite keeping the doctrine of parliament sovereignty and the “first past the post”, has moved towards consensual democracy in several ways: EU law empowered British judges to set aside legislation; the European Convention on Human Rights together with the Human Rights Act introduced weak judicial review of legislation; the devolution processes endorsed vertical division of power; rights to external self-determination of Scotland and Northern Ireland have been granted; a coalition government ruled the UK from 2010 to 2015; etc.
- 51.
Even an author so convinced not to constitutionalize the right to secede seemed to admit implicitly that a secession clause can foster multinational integration and federalization: “For the European Community, for example, a right to secede may therefore be more sensible, and indeed it will provide a greater incentive to join in the first instance”. Sunstein, C.R. Designing Democracy, p. 105.
- 52.
See Sunstein, C.R. “Constitutionalism and Secession”, pp. 654–69.
- 53.
Article 35 of the 1793 French Déclaration des Droits de l’Homme et du Citoyen established that: “When the government violates the rights of the people, insurrection is for the people and for each portion of the people the most sacred of rights and the most indispensable of duties”.
- 54.
For further discussions on Lincoln’s arguments against secession, see Radan, P. “Lincoln… and Secession” and Wellman, C.H. A Theory of Secession, ch. 4.
- 55.
“…in legal contemplation, the Union is perpetual, confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was ‘to form a more perfect Union.’ But if [the] destruction of the Union, by one, or by a part only, of the States, be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity”. Lincoln, A. “First Inaugural Address”. Washington, DC, 4 March 1861.
- 56.
The last paragraph of the Declaration of Independence of 4 July 1776 states that: “We, therefore, the Representatives of the United States of America, (…), solemnly Publish and Declare, That these United Colonies are, and of Right ought to be, Free and Independent States; (…); and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do”.
- 57.
Even though the parties to the Treaty were the British Monarchy and the USA, Article 1 of the Treaty of Paris of 1783 stipulates that: “His Britannic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and Independent States; that he treats with them as such, and for himself his Heirs & Successors, relinquishes all claims to the Government, Propriety, and Territorial Rights of the same and every Part thereof”.
According to Calhoun, the introductory formula of the 1787 US Constitution “We, the people of the United States of America” kept referring to the people of the several States of the Union acting as “free, independent, and sovereign States”. The expression “United States of America” designated, based on language and history, “the States in their aggregate character”. Calhoun, J.C. “A Discourse on the Constitution and Government of the United States” in Selected Writings and Speeches, pp. 72–4.
- 58.
Article 13 of the Articles of Confederation of 1777 stipulated that “the Articles of this confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every State”.
- 59.
Madison, Hamilton, Jay, The Federalist, No. 40 and No. 43.
- 60.
See § 14.1.
- 61.
Lincoln, A. “First Inaugural Address”. For a defence of the secession of the South, see Samuel, B. Secession and Constitutional Liberty. See also the Writings and Speeches of John C. Calhoun.
- 62.
See § 2.6.
- 63.
Some examples on civil law may raise doubts about the Lincolnian contractual argument: (1) marriage contracts and the possibility of separation and divorce, (2) termination of services and works contracts because of loss of trust in the other party, (3) redemption of emphyteusis contracts and long leases of residential property, (4) general termination of a contract because of non-compliance by one of the parties, (5) annulment of abusive clauses and interpretation of ambiguous clauses in favour of the weaker party, especially in adhesion contracts, (6) the rebus sic stantibus clause, which allows release from a contractual obligation in the event of a fundamental change of circumstances. The liberal principle of freedom of contract rarely involves the entirety of a person and is usually subject to termination. For that reason, Schmitt defends that the constitutional contract (in particular, the federal contract between several independent political units) is not a free contract but a status contract. The latter constitutes an enduring life relationship, such as medieval contracts of vassalage or traditional marriage. See Schmitt, C. Constitutional Theory, § 7.
- 64.
See ch. 2.
- 65.
“Plainly, the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible. So that, rejecting the majority principle, anarchy or despotism in some form is all that is left”. Lincoln, A. “First Inaugural Address”.
- 66.
See Buchheit, L.C. Secession, pp. 110–1.
- 67.
See Beran, H. “A Liberal Theory of Secession”, p. 27. See § 2.6.
- 68.
See § 13.1.
- 69.
See Margalit, A.; Raz, J. “National Self-Determination”, p. 448.
- 70.
- 71.
- 72.
Let us consider the analogy of services and works contracts. Under Continental civil law, services contracts can be revoked in the event of loss of trust in the other party (with the commensurate indemnification). Under common law contracts of personal service, even if one party fails to comply with the contract it cannot be forced to at the instigation of the other. By analogy with contracts of personal service, James Buchanan (US President from 1857 to 1861) took the view that, although the southern secessionist States had broken the constitutional contract (by violating the federal Constitution), the central Government could not make them remain in the Union by force. For him, a war to put an end to secession was normatively reproachable. Radan, P. “Lincoln… and Secession”, p. 65. Even in works contracts, desisting from the construction tends to be possible with due compensation.
- 73.
In this vein, Wellman, C.H. A Theory of Secession, p. 84.
- 74.
“All profess to be content in the Union, if all constitutional rights can be maintained. Is it true, then, that any right, plainly written in the Constitution, has been denied? I think not. (…) Think, if you can, of a single instance in which a plainly written provision of the Constitution has ever been denied. If by the mere force of numbers, a majority should deprive a minority of any clearly written constitutional right, it might, in a moral point of view, justify revolution – certainly would, if such right were a vital one. But such is not our case. All the vital rights of minorities, and of individuals, are so plainly assured to them, by affirmations and negations, guaranties and prohibitions, in the Constitution, that controversies never arise concerning them. But no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions. Shall fugitives from labor be surrendered by national or by State authority? The Constitution does not expressly say. May Congress prohibit slavery in the territories? The Constitution does not expressly say. Must Congress protect slavery in the territories? The Constitution does not expressly say”. Lincoln, A. “First Inaugural Address”.
- 75.
“We assert that fourteen of the States have deliberately refused, for years past, to fulfill their constitutional obligations, and we refer to their own Statutes for the proof”. Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union (1860).
- 76.
Regarding Article 4, the Declaration of 1860 reads: “This stipulation was so material to the compact, that without it that compact would not have been made”. In addition, the US Congress broke the convention that new States would be admitted to the Union on the basis of one slave State for one free State. See Birch. A.H. “Another Liberal Theory of Secession”, pp. 600–1.
- 77.
When the 13th and 14th Amendments were passed, Southern States did not have their representatives in Congress and remained unrepresented until the amendments were ratified. What is more, a sort of military occupation was in place. The ten Southern States were divided into five military districts and the Union Army controlled the transition to statehood. See Ackerman, B. We the People (2), ch. 4.
- 78.
Rawls, J. The Law of Peoples, § 4.2, note 45. For a similar interpretation of Rawls, see Radan, P. “Lincoln… and Secession”, p. 72.
- 79.
Rawls, J. The Law of Peoples, § 5.4.
- 80.
Buchanan, A. Secession, p. x (preface).
- 81.
See Wellman, C.H. A Theory of Secession, pp. 86–7.
- 82.
Radan, P. “Lincoln… and Secession”, p. 67.
- 83.
“I do but quote from one of those speeches when I declare that ‘I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.’ Those who nominated and elected me did so with full knowledge that I had made this, and many similar declarations, and had never recanted them”. Lincoln, A. “First Inaugural Address”.
- 84.
“My paramount object in this struggle is to save the Union, and is not either to save or destroy Slavery. If I could save the Union without freeing any slave, I would do it, and if I could save it by freeing all the slaves, I would do it, and if I could save it by freeing some and leaving others alone, I would also do that. What I do about Slavery and the colored race, I do because I believe it helps to save this Union, and what I forbear, I forbear because I do not believe it would help to save the Union”. A Letter from President Lincoln. Reply to Horace Greeley. Slavery and the Union: The Restoration of the Union the Paramount Object. The New York Times. Published 24 August 1862.
- 85.
Buchanan, A. Secession, p. 1.
- 86.
See Radan, P. “Lincoln… and Secession”, pp. 70–2.
- 87.
Buchheit, L.C. Secession, pp. 111–2.
- 88.
Sorens, J. Secessionism, p. 74.
- 89.
The precedent set by Puerto Rico can weaken if it is taken into account that: (1) the secessionist claims of Puerto Rico are very low; (2) Puerto Rico is not part of the federal organization of the USA; (3) insularity is always treated as a special case in comparative politics and law; and (4) despite not being on the UN’s list of non-autonomous territories, Puerto Rico could be considered a kind of colony, since Puerto Ricans do not vote in presidential elections and have only a single commissioner in Congress with a right to speak but no vote. See the “Concurrent Resolution” of the Senate and the House of Representatives of Puerto Rico to request the President and the Congress of the United States to respond diligently and effectively, and to act on the demand of the people of Puerto Rico, as freely and democratically expressed in the plebiscite held on November 6, 2012, to end, once and for all, its current form of territorial status and to begin the process to admit Puerto Rico to the Union as a State.
- 90.
See § 11.5.
- 91.
Weinstock, D. “Constitutionalizing the Right to Secede”, pp. 186–203. Norman, W. Negotiating Nationalism, pp. 189–92.
- 92.
Norman, W. Negotiating Nationalism, pp. 175–211. Norman, W. “From quid pro quo to modus vivendi…”, pp. 191–201.
- 93.
According to Moore, it is not proven that secessionist mobilization is closely linked to current injustices. This intuition is plausible but unsupported. Moore, M. The Ethics of Nationalism, p. 148. Sorens argues that overwhelming support for secession almost always occurs in countries with a long history of autocracy or repression (the Baltic Republics, Kosovo, Croatia, Slovenia, Iraqi Kurdistan, Eritrea, East Timor, South Sudan and Western Sahara), whereas there are only two contemporary examples of mass secession claims within what he considers “stable democracies”: India’s Kashmir Valley and the Palestinian territories under Israeli control. Sorens, J. Secessionism, p. 156. That said, the independence of Norway from Sweden and of Iceland from Denmark were both supported by overwhelming majorities but do not seem to have been the result of any injustices of commensurate magnitude at that time. See ch. 12. By contrast, there can be injustices (resulting from colonization and occupation, for instance) that give birth to movements, alterations and repressions of population that can hinder achievement of large majorities in favour of secession.
- 94.
Sunstein, C.R. “Constitutionalism and Secession”, p. 652.
- 95.
Dion, S. “Why is Secession Difficult…?”, pp. 269–83.
- 96.
As emphasized earlier, the USA withdrew from the UK when the latter had one of the most modern representative liberal systems of the time; the southern States of North America tried to secede from the USA, one of the first liberal and democratic republics in the world; almost half of Quebecers have questioned the union with the rest of Canada despite the latter being a worldwide model of a democratic, liberal and multinational federation; about half of Scots favour independence, despite the UK being a very consolidated liberal democracy and taking firm steps towards recognition and accommodation of its national pluralism in the last few decades.
- 97.
Sorens, J. Secessionism, ch. 3. Weinstock, D. “Constitutionalizing the Right to Secede”, p. 201.
- 98.
See § 2.7.
- 99.
See Sunstein, C.R. “Constitutionalism and Secession”, p. 659 et seq.
- 100.
See Hechter, M. “The Dynamics of Secession”, pp. 267–83. Vaubel, R. “Secession in the European Union”. Horowitz, D.L. Ethnic Groups in Conflict.
- 101.
Sorens, J. Secessionism, p. 110.
- 102.
A rigorous historical analysis would call into question any strict division.
- 103.
Beyond the right to external self-determination, within the label multicultural State there can be rights to internal self-determination, territorial autonomy, cultural and linguistic rights, etc.
- 104.
These declarations seemed to refer specifically to Scotlandin the UK and to Quebec in Canada. Norman, W. Negotiating Nationalism, p. 175. Norman, W. “From quid pro quo to modus vivendi…”, p. 187. Moore, M. The Ethics of Nationalism, p. 212. Greer, S. in Argullol, E.; Velasco, C. (dir.) Institutions and Powers in Decentralized Countries, § III (6).
- 105.
As famously summarized by Dicey, the monarch in Parliament has “the right to make or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament”. See Dicey, A.V. Introduction to… the Law of the Constitution, p. 40. Supreme Court Judgement of 24 January 2017 R v Secretary of State for Exiting the European Union.
- 106.
Keating, M. The Independence of Scotland, pp. 26, 38. In contrast, there has long stand a principle of political morality in Scotland that provides a sort of (ultimate) sovereignty of the people. This principle can be traced back to the sixteenth-century writings of George Buchanan (De Jure Regni Apud Scotos) and has re-emerged energetically during both the devolution process of the late twentieth century (see the 1988 Claim of Right for Scotland) and the independence process of the early twenty-first century (see the 2014 Scottish Independence Bill: A consultation on an Interim Constitution for Scotland). Article 2 of this Bill was titled Sovereignty of the people and read: “In Scotland, the people are sovereign”. See MacCormick, N. Questioning Sovereignty, chs. 4, 8. Tierney, S. Constitutional Law and National Pluralism, pp. 109–17.
- 107.
See Leyland, P. The Constitution of the United Kingdom. For case law, see High Court Judgement Thoburn v. Sunderland City Council (2002) and Supreme Court Judgement R v Secretary of State for Exiting the European Union (2017).
- 108.
Although the doctrine of the sovereignty of the UK Parliament is still in force, from 1998 a convention emerged (once called the Sewel Convention) establishing that, in order to legislate in any devolved area, the UK Parliament needs the consent of the Scottish Parliament. At the same time, in order to reform the Scotland Act, an express amendment seems to be needed. In this way, any implied repeal of the Scotland Act by any ordinary statute of Westminster would be limited to a certain extent. See Leyland, P. The Constitution of the United Kingdom and the above-mentioned case of Thoburn v. Sunderland. From Scotland, the sovereignty of Westminster has sometimes been qualified or limited by virtue of the Union of Parliaments of 1707. In the 1953 case of MacCormick v. Lord Advocate, the Court of Session considered that the Articles of the Union were fundamental law, therefore not ordinary Acts of Parliament. See MacCormick, N. Questioning Sovereignty, pp. 53–60. Tierney, S. Constitutional Law and National Pluralism, pp. 109–17. Nevertheless, the Acts of Union between English and Scottish Parliaments were later amended, for instance, by the Westminster Parliament through the Universities (Scotland) Act of 1853, which relieved most professors of Scottish universities from subscribing to the Confession of Faith. Dicey, A.V. Introduction to… the Law of the Constitution, p. 65.
- 109.
See Hart, H.L.A. The Concept of Law, pp. 121, 149–52.
- 110.
See Introduction by E.C.S. Wade in Dicey, A.V. Introduction to… the Law of the Constitution.
- 111.
Hogg, P.W. Constitutional Law of Canada, chs. 1, 4. “Canada’s gradual evolution from colony to nation has denied it any single comprehensive constitutional document” (p. 11).
- 112.
Monahan, P.J.; Bryant, M.J. Coming to Terms…, pp. 20–2.
- 113.
See ch. 12. Reference re Secession of Quebec, pars. 84, 97. Although the Court did not specify the type of constitutional reform, many consider that the unanimous consent of all the Provinces is necessary, but others consider that the general amending formula would be applicable. Woehrling, J. in Argullol, E.; Velasco, C. (dir.) Institutions and Powers in Decentralized Countries, § III (6). Monahan, P.J.; Bryant, M.J. Coming to Terms…, p. 25. From a textual interpretation, Section 41 of the Constitution Act of 1982 seems to exclude secession from the unanimity procedure. Section 3(1) of the Clarity Act stipulates that: “It is recognized that there is no right under the Constitution of Canada to effect the secession of a province from Canada unilaterally and that, therefore, an amendment to the Constitution of Canada would be required for any province to secede from Canada, which in turn would require negotiations involving at least the governments of all of the provinces and the Government of Canada”.
- 114.
Woehrling, J. in Argullol, E.; Velasco, C. (dir.) Institutions and Powers in Decentralized Countries, § II (2).
- 115.
Reference re Secession of Quebec, pars. 49–54.
- 116.
Ibid. “The Constitution is more than a written text. It embraces the entire global system of rules and principles which govern the exercise of constitutional authority. A superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading. It is necessary to make a more profound investigation of the underlying principles animating the whole of the Constitution, including the principles of federalism, democracy, constitutionalism and the rule of law, and respect for minorities. Those principles must guide our overall appreciation of the constitutional rights and obligations that would come into play in the event that a clear majority of Quebecers votes on a clear question in favour of secession”.
- 117.
Ibid., par. 150.
- 118.
Monahan, P.J.; Bryant, M.J. Coming to Terms…, p. 25 (see also pp. 31–51).
- 119.
See Ferreres, V. The Constitution of Spain.
- 120.
In the whole of Spain, the turn-out was 67%, with 88% voting yes, 8% no and 4% blank. In Catalonia, the turn-out was 68%, 90% voted yes, 5% no and 4% blank. In the Basque Country, the turn-out was only 45%, 69% voted yes, 22% no and 6% blank. Own calculation from data from the Spanish Parliament website: http://www.congreso.es/consti/elecciones/referendos/ref_consti.htm.
- 121.
See Colomer, J.M. El arte de la manipulación política, pp. 115–41.
- 122.
See Solé Tura, J. Autonomies, Federalisme i Autodeterminació, pp. 79–83. Lopez Bofill, H. “Hubris…”.
- 123.
Bogdandy, A.; Cruz Villalón, P.; Huber, P.M. El derecho constitucional…, pp. 19–21.
- 124.
See Aragón, M. Estudios de Derecho Constitucional, pp. 207–10.
- 125.
Vega, P. La reforma constitucional…, pp. 219–22, 285–91.
- 126.
Bossacoma, P. Sovereignty in Europe, p. 22.
- 127.
Ruiz Soroa, J.M. “Regular la secesión”, pp. 192–5.
- 128.
Muñoz Machado, S. “Más allá de la intentona independentista”, p. 7. Muñoz Machado, S. Vieja y nueva Constitución, p. 191.
- 129.
Schmitt, C. Constitutional Theory, §§ 1–3, 8, 11.
- 130.
Aragón, M. Constitución, democracia y control, p. 35. Aragón, M. Estudios de Derecho Constitucional, p. 209.
- 131.
Kelsen, H. Teoría General del Estado, pp. 374–8. See § 8.1.
- 132.
Inter alia, Judgements 48/2003, 103/2008, 31/2010 and 42/2014.
- 133.
Judgement 48/2003 ruled that the Spanish Constitution neither excludes any of its provisions from the possibility of being amended nor subjects the power to amend the Constitution to any more explicit limits than the strictly formal and procedural. Judgements 48/2003 and 42/2014 recognized that the Spanish constitutional democracy is not a militant democracy because the Constitution includes no eternity clauses. In short, since the whole of the Constitution is amendable, the democratic debate has no limits prima facie.
- 134.
So, note that the Constitutional Court is not strictly denying the value of the principle of democracy but ruling that these democratic decisions are to be made by the Spanish people as a whole.
- 135.
In similar vein, see López Bofill, H. “The Limits of Constitutionalism” in Lluch, J. (ed.) Constitutionalism…, pp. 76–7. Corcuera Atienza, J. “Soberanía y Autonomía”, p. 339. Ferreres, V. The Constitution of Spain, p. 191.
- 136.
See ch. 12. Bossacoma, P.; López, H. “The Secession of Catalonia”.
- 137.
Cruz Villalón, “El ordenamiento constitucional” in La curiosidad del jurista persa…, p. 113. In similar vein, see Muñoz Machado, S. Vieja y nueva Constitución, p. 140. Otto, I. Obras completas, p. 858. Vega, P. La reforma constitucional…, pp. 148–9: “The mechanism (of Article 168) is so complex that it can be forecast that it will never work. Instead of an amending procedure, it should be labelled as a procedure to prevent reform”. Colón-Ríos, J.I. Weak Constitutionalism, pp. 67, 142: “In fact, the process established in Article 168 of the Spanish Constitution seems to have the purpose of making fundamental transformations close to impossible”.
- 138.
Moreover, the current Spanish tendency towards multipartyism can make the amending procedure even more difficult.
- 139.
See Lasagabaster, I. Consulta o Referéndum.
- 140.
Mangas, A. “La secesión de territorios en un Estado miembro”, pp. 52–3.
- 141.
Rubio Llorente, F. “Un referéndum para Cataluña”, El País, 8 October 2012.
- 142.
This option could be treated as a kind of constitutional mutation (or as an implicit or tacit constitutional reform), by acquiescence of the branches of central government and consolidated by international law.
- 143.
See Ferreres, V. The Constitution of Spain, pp. 61–2. Otto, I. Obras completas, pp. 865–6.
- 144.
See Article 191 of Constitutional Statute No. 1/89. Ferreres, V. Constitutional Courts & Democratic Values, p. 107 and footnote 39.
- 145.
See § 8.1. Actually, treating secession as a matter of constitutional politics rather than constitutional justice may have a chance of becoming an “incompletely theorized agreement”, with some of the virtues of that kind of agreement described by Sunstein. See Sunstein, C.R. Designing Democracy, ch. 2. However, it is doubtful that, by their very nature, secessionist conflicts, as well as many other disputes, are only political and, therefore, not justiciable. Constitutional law and adjudication is intrinsically related to political (and territorial) disputes. Thus, considering a conflict to be political excludes neither treating it as a legal dispute nor the role of constitutional adjudication. In contrast, see Schmitt, C. Constitutional Theory, § 11. In similar vein, Lord Justice Reed, dissenting in the mentioned Miller case (par. 240), warned: “It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary”.
- 146.
Ferret J. “Nació, símbols i drets històrics”, p. 46.
- 147.
Not only were Spanish Constitutions rarely reformed following their amending clauses, but the more rigid the procedure was, the less the Constitution lasted. Muñoz Machado, S. Vieja y nueva Constitución, p. 76.
- 148.
Garrorena, Á. Derecho Constitucional, p. 115.
- 149.
Moreover, Article 3 of the 1958 Fundamental Act stipulated that “statutes and provisions of all types that violate or erode the Principles proclaimed in the present Fundamental Act of the Kingdom are null and void”. In more technical terms, although the 1958 and 1977 Fundamental Acts had the same legal rank, the relevant question was whether or not the 1958 Fundamental Act established a sort of eternity clause and if the 1977 Fundamental Act violated this clause.
- 150.
See Garrorena, Á. Derecho Constitucional, pp. 114–7.
- 151.
See Solé Tura, J.; Aja, E. Constituciones y períodos constituyentes en España (1808–1936).
- 152.
García De Enterría, E. La Constitución como norma…. See Ferreres, V. The Constitution of Spain, ch. 3.
- 153.
Bogdandy, A.; Cruz Villalón, P.; Huber, P.M. El derecho constitucional…, p. 34.
- 154.
Ibid., p. 31.
- 155.
There is a sort of “political taboo when it comes to revising the Spanish Constitution”. Ferreres, V. The Constitution of Spain, pp. 55–9.
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Bossacoma Busquets, P. (2020). Constitutional Right to Secede and Constitutional Reform. In: Morality and Legality of Secession. Federalism and Internal Conflicts. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-26589-2_8
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