Abstract
This chapter develops a constitutional theory on unilateral secession based on the awakening of a new constituent people for cases where there is no constitutional option to secede. Given the revolutionary nature of unilateral secession, in liberal-democratic contexts only after a long path seeking negotiated and constitutional ways will unilateral democratic routes, backed up by extensive, intense and sustained popular mobilization, be able legitimately to overcome the constitutional barriers and raise the seceding nation as a constituent people. In these contexts, unilateral secession is and must be a difficult target.
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Notes
- 1.
See § 13.2.
- 2.
See Ackerman, B. We the People (1), ch. 8. Arendt, H. On Revolution, especially ch. 2.
- 3.
See Ackerman, B. We the People (1), chs. 1, 9–11. For democratic dualism beyond the US Constitution, Ackerman, B. “The New Separation of Powers”, pp. 664–9.
- 4.
See § 2.3.
- 5.
The requirement of an extended period of mobilization and deliberation seems a good remedy against the ill warned by Sunstein: “Indeed secession movements are highly likely to reflect processes of group polarization, as like-minded people, speaking and listening mostly to one another, end up with increasingly extreme positions”. Sunstein, C.R. Designing Democracy, p. 96 (see also pp. 112–3).
- 6.
See Ackerman, B. We the People (1), pp. 278–88.
- 7.
With no pretension of being exhaustive, the Catalan independence movement may be awakening as a We the People: (1) mass self-determinist and secessionist demonstrations on the Catalan national day (“diada”) every year since 2012; (2) strong civil organizations pushing for secession; (3) about 800 of the approximately 1000 local governments in Catalonia are associated for independence; (4) several illegal referendums and informal consultations on independence from 2009 to 2017; (5) the intense and ongoing debate on the right to hold a legal and negotiated referendum on independence resulting in broad support in Catalonia for consulting Catalan citizens on independence; (6) the big increase in turnout for the elections to the Parliament of Catalonia—68% in 2012, 75% in 2015 and 79% in 2017. Although pro-secession parties obtained majorities in the Catalan Parliament that enabled them to form three secessionist governments (2012–2015, 2015–2017, 2017–ongoing), the results of these elections nevertheless show that there is no clear or qualified majority of voters supporting independence. Besides, pro-secession parties had worse results in the Spanish Parliament. All these elections could be part of the Ackermanian “series of electoral tests” that should be passed to confirm the rise of a constituent people. Ackerman, B. We the People (3), p. 43. Ackerman, B. “The New Separation of Powers”, p. 665.
- 8.
This revolutionary reform of the Constitution would be similar to those that Ackerman describes in his explanation of the evolution of the US Constitution. Arguably, applying an Ackermanian approach to a secessionist challenge can skip some of the problems with applying this approach to the same constituted polity. First, it is easier to argue against the need to follow the formal amending procedure when the theory is applied to the nascence of a new constituent demos which is a sort of permanent national minority in the country as a whole but a majority in a specific territory of it. Second, once the new demos performs as an independent State and is recognized as such, there is no more trouble to identify the constitutional change. Third, since a new constitutional beginning starts after independence, a new constitutional canon is supposed to inform the validity of the future legislation. Thus, it largely saves the dilemma of how to treat future ordinary statutes in conformity with the formal constitution but contrary to an informal constitutional reform. In this way, it avoids the need to develop a doctrine to distinguish between formal and informal constitutional amendments. Last but not least, legal certainty seems to be better preserved in a constitutional theory where informal constitutional reforms do not become normalized but are reserved for very particular issues such as the emergence of a new constituent people.
- 9.
Ackerman, B. We the People (2), p. 116.
- 10.
Ackerman, B. We the People (3), p. 28. Ackerman, B. We the People (2), pp. 405–16.
- 11.
As defended in § 8.1.
- 12.
See Ferreres, V.; Saiz Arnaiz, A. “Una gran conversación colectiva”, El País, 5 February 2014.
- 13.
As Norman points out concerning secessionist demands: “the possibility of political violence cannot be ruled out in even the most peaceful of political cultures”. Norman, W. Negotiating Nationalism, p. 174. Norman, W. “From quid pro quo to modus vivendi…”, p. 187.
- 14.
Constant, B. “The Liberty of the Ancients Compared with That of the Moderns”, in Political Writings.
- 15.
Bossacoma, P.; López, H. “The Secession of Catalonia”.
- 16.
Kelsen, H. Teoría General del Estado, § 36.
- 17.
Hart, H.L.A. The Concept of Law, pp. 100–23.
- 18.
Ibid., p. 117.
- 19.
Ibid., pp. 120–1.
- 20.
See ch. 7.
- 21.
Kelsen, H. Teoría General del Estado, § 36.A. Kelsen, H. Principles of International Law, p. 264.
- 22.
See ch. 6.
- 23.
The US Declaration of Independence of 1776 reads: “We, therefore, the Representatives of the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the Rectitude of our Intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly Publish and Declare, That these United Colonies are, and of Right ought to be, Free and Independent States”. Kosovo’s Declaration of Independence of 2008 proclaims: “We, the democratically-elected leaders of our people, hereby declare Kosovo to be an independent and sovereign State”. On this aspect, see the ICJ Opinion, pars. 102–9.
- 24.
See Armitage, D. The Declaration of Independence.
- 25.
See § 8.1. Armitage, D. The Declaration of Independence, p. 26. Arendt, H. On Revolution, pp. 117–31.
- 26.
“12. We hereby affirm, clearly, specifically, and irrevocably, that Kosovo shall be legally bound to comply with the provisions contained in this Declaration, including, especially, the obligations for it under the Ahtisaari Plan. In all of these matters, we shall act consistent with principles of international law and resolutions of the Security Council of the United Nations, including resolution 1244 (1999). We declare publicly that all States are entitled to rely upon this declaration, and appeal to them to extend to us their support and friendship”.
- 27.
Many modern Latin languages still use the same word for principium and principles. Ancient Greek already had this identity. See Arendt, H. On Revolution, pp. 205–6.
- 28.
This distinction is different from that between declaration towards independence and declaration of independence. See § 10.2.
- 29.
After the issuing of a UDI, it might be better for ordinary elections and Parliament to continue in parallel to constituent elections and assembly. First, citizens might support one political force during the independence process, but then prefer another to write the constitution of the new State. Second, unilateral secession and creation of a new State would imply a large number of political affairs. In this respect, while the Constituent assembly could write the constitution in more ideal terms, the Parliament could deal with the many political troubles in more short-term nonideal ways. Finally, to isolate the Constituent assembly from the day-to-day partisan struggle, it can be wise to keep the function of selecting the high offices (both of the Executive and of the Judiciary) and the functions of controlling the Government in the hands of the Parliament. That is to say, a Parliament and a Constituent assembly could coexist enabling the latter to give full attention to drafting of the constitution. See Sieyès, E. Qu’est-ce que le Tiers état?, ch. V. That said, a constituent assembly dealing with the ordinary parliamentary issues or a Parliament with a special constitution-making commission could be simpler and more practical ways.
- 30.
There seems to be no general rule in international law providing that the law of the predecessor State remains in force until it is repealed by the new authorities of the successor State. The laws of the predecessor State remain in force if the successor State decides so, whether expressly or tacitly. See Kelsen, H. Principles of International Law, p. 297, footnote 66. Without prejudice to mechanisms allowing the necessary exceptions and adaptations, it would be advisable for the new legal order to keep most legal provisions in force. See Bossacoma, P. “Secession in Liberal-Democratic Contexts”.
- 31.
For instance, since in unilateral secession Courts would probably be a stronghold of the parent State and its constitutional order, the new State would probably wish to change, at least, the apex of the judiciary as happened in many revolutions. Internally, the case law of this renewed judicial top would not easily be followed by lower Courts. Externally, the renewal of the judicial branch could be seen as a danger for the rule of law, respect for human rights and protection of minorities.
- 32.
Provisional regulations on citizenship are more delicate than on some other matters, since they could strongly condition the definitive solution. For moral, legal and political reasons, the definitive regulations could broaden rather than narrow who could be a citizen of the new State, compared with the provisional regulations. See § 11.4. Bossacoma, P. “Who Would the Citizens… Be?”.
- 33.
See Bossacoma, P. Secesión e integración, pp. 57–8.
- 34.
See Bossacoma, P. “Secession in Liberal-Democratic Contexts”. Dion, S. Straight Talk, pp. 234–7.
- 35.
Schmitt, C. Constitutional Theory, p. 76. According to Schmitt, the political decision regarding the type and form of State existence, which constitutes the substance of the constitution, requires no justification via an ethical or juristic norm. Instead, it makes sense in terms of political existence (p. 136).
- 36.
Ibid., p. 131.
- 37.
Monahan, P.J.; Bryant, M.J. Coming to Terms…, pp. 23–4.
- 38.
Philpott, D. “In Defense of Self-Determination”, p. 381.
- 39.
Although this could be framed as tension between justice and prudence, prudential reasons are part of moral and legal reasoning and so of justice. See Walzer, M. Just and Unjust Wars, pp. 92–5.
- 40.
See § 11.5.
- 41.
However, part of the academia considers premature recognition contrary to international law. See ch. 6.
- 42.
See ch. 7.
- 43.
Or, in the terms of the US Declaration of Independence: “To prove this, let Facts be submitted to a candid world” and “appealing to the Supreme Judge of the world for the rectitude of our intentions”. See Armitage, D. The Declaration of Independence, p. 21.
- 44.
See El País, “Reacciones internacionales tras la declaración de independencia en Cataluña”, 30 October 2017. There are two interesting non-academic books written by eminent Catalan jurists analysing the events of the fall of 2017: Luque, P. La secesión en los dominios del lobo. Bayona, A. No todo vale. The first takes a sort of outer perspective, whereas the second a more inner one.
- 45.
See Bossacoma, P. “Secesión, democracia y derecho”.
- 46.
See Walzer, M. Arguing About War, pp. xiv, 53.
- 47.
See Weber, M. Politics as a Vocation, pp. 41–8.
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Bossacoma Busquets, P. (2020). Unilateral Secession. In: Morality and Legality of Secession. Federalism and Internal Conflicts. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-26589-2_14
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