Abstract
Under Justice as multinational fairness, the more unjust the State treatment of minority nations is, the lower the requirements to secede ought to be. Injustices may thus work as complementary causes to reduce the requisites for secession as well as to limit legitimate reasons to impede secession. This moral approach to secession is, therefore, more gradual, nuanced and adaptable than others.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
In similar vein, Philpott, D. “In Defense of Self-Determination”, pp. 375–8.
- 2.
Norman, W. “Ethics of Secession”, pp. 52–6. Norman, W. Negotiating Nationalism, pp. 187–8. Although the idea of vanity secessions may be of theoretical interest, Costa criticizes its practical relevance since the real costs of secession are too high to allow vanity secessions. Costa, J. “On Theories of Secession”, p. 80. Justice as fairness endorses a much deeper criticism of what a just cause is, claiming that not only the suffering of injustices constitutes “just causes” to secede.
- 3.
See § 5.3.
- 4.
Buchheit, L.C. Secession, p. 18.
- 5.
UN General Assembly Resolution 2625 (XXV) of 1970 stipulates: “The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter. The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal”. See ch. 5. In similar vein, Brownlie, I.; Crawford, J. Brownlie’s Principles of Public International Law, p. 242.
- 6.
In similar vein, Cassese, A. Self-Determination of Peoples, ch. 7, especially pp. 188–9.
- 7.
Margalit, A.; Raz, J. “National Self-Determination”, p. 442.
- 8.
This is the rule in both Catalan and Spanish Civil Codes.
- 9.
In similar vein, Margalit, A.; Raz, J. “National Self-Determination”, p. 459. Buchanan, A. Secession, pp. 87–91.
- 10.
Buchanan, A. Secession, p. 88.
- 11.
E.g. Articles 544–3 of the Civil Code of Catalonia.
- 12.
In general, classical Roman usucaption seemed to be a mechanism to rectify acquisitions made in good faith but suffering from formal defects or lack of ownership on the part of the transferor. Usucaption therefore demanded title and acquisition in good faith. Later, in parallel, a provincial institution called praescriptio longi temporis was developed which worked as an acquisitive prescription, in that it prevented claims from owners who had refrained from interrupting a lengthy possession. In the end, the two institutions were joined during the time of Justinian, discarding proof of title but demanding good faith. This evolution seems to have reinforced the value of legal certainty.
- 13.
Basic requirements of usucaption and adverse possession are listed in § 2.6.
- 14.
For example, Article 441 of the Spanish Civil Code.
- 15.
See Buchanan, A. Secession, pp. 90–1.
- 16.
See ch. 7. Actually, international law recognizes “prescription” as a mode of acquisition of territorial sovereignty which requires public, peaceful and persisting possession à titre de souverain plus acquiescence (i.e. no reaction or no protest) by the previous sovereignty-holder. See Brownlie, I.; Crawford, J. Brownlie’s Principles of Public International Law, pp. 229–35
- 17.
See Locke, Two Treatises of Government.
- 18.
Rawls, J. A Theory of Justice, p. 53.
- 19.
Buchanan, A. Secession, p. 51.
- 20.
Kymlicka, W. Politics in the Vernacular, p. 80. Kymlicka, W. Multicultural Citizenship, pp. 2–6.
- 21.
International law seems to be predisposed to accept this as a cause for secession as well as grave violations of the duty to respect and protect minorities (Aaland Islands doctrine). See § 5.2.
- 22.
In this vein, Buchanan, A. Secession, pp. 112–13.
- 23.
At least it would be easier to defend, in relative or comparative terms, that the seceding nation fulfils the Principle of need for liberal nationalism and the Principle of respect for human rights and protection of minorities. Moreover, the parent State could not oppose these exceptions.
- 24.
A last pragmatic argument would be that secession could weaken the government of the parent State so much that a general citizens’ revolution would be facilitated. In this regard, the first secessions of the former Yugoslav and Soviet Republics triggered the fall of their respective federations and, notwithstanding the difficulties and limitations, the creation of many liberal-democratic States. Yet, empirical exploration of this intuition would be needed, since secession could also weaken the general resistance against an oppressive government.
- 25.
See § 4.2.
- 26.
The last of these criteria can be assessed from the severity and duration of the periods of violation of human rights.
- 27.
Buchanan, A. Secession, p. 40. In a similar vein, Sunstein, C.R. Designing Democracy, p. 108.
- 28.
See § 3.3.
- 29.
Sunstein, C.R. Constitutionalism and Secession, pp. 648–9, 659–61.
- 30.
See Article 206.5 of the Statute of Autonomy of Catalonia.
- 31.
For example, a policy of non-development of a major airport based on the parent State’s refusal to sign international treaties to open new international flights.
- 32.
When these acts and decisions have an economic, fiscal or budget content, they can be included in the economic exploitation balance.
- 33.
See Buchanan, A. Secession, pp. 38–45. Haljan, D. Constitutionalising Secession, ch. 5. Hayek, F.A. The Road to Serfdom, pp. 64–5.
- 34.
Buchanan, A. Secession, p. 45.
- 35.
The list of grievances in the Declaration of Independence of 4 July 1776 includes: “For imposing taxes on us without our consent”.
- 36.
See Arendt, H. On Revolution, ch. 5. As regards “the rights of Englishmen”, see ch. 4.
- 37.
See Anderson, B. Imagined Communities, ch. 4.
- 38.
Buchanan, A. Secession, pp. 45–8.
- 39.
See § 3.4.
- 40.
See Rawls, J. A Theory of Justice, § 5.
- 41.
See § 2.4.
- 42.
See § 2.2.
- 43.
As Pope John Paul II recalled before the UN General Assembly on 5 October 1996, “a presupposition of a nation’s rights is certainly its right to exist: therefore no one — neither a State nor another nation, nor an international organization — is ever justified in asserting that an individual nation is not worthy of existence”. See https://w2.vatican.va/content/john-paul-ii/en/speeches/1995/october/documents/hf_jp-ii_spe_05101995_address-to-uno.html.
- 44.
Taylor, C. Reconciling the Solitudes, pp. 53–4.
- 45.
Tamir, Y. Liberal Nationalism, pp. xi–xii (new preface).
- 46.
Buchanan, A. Secession, pp. 64–7.
- 47.
Along these lines, UN General Assembly Resolution 2189 (XXI) of 1966 condemns colonial policies that promote systematic influx of foreign immigrants to the colonies while displacing, deporting and transferring the indigenous inhabitants to other areas. Again, though, international law and politics distinguish unfair treatment of overseas colonies and newly conquered territories from similar mistreatment of peoples living on a piece of land abutting that of its oppressors.
- 48.
In this regard, Birch. A.H. “Another Liberal Theory of Secession”, p. 601.
- 49.
However, when self-defence is launched as a secessionist argument vis-à-vis a third State which is not the aggressor, the argument of self-defence has more similar force to the argument of self-preservation.
- 50.
In this vein, see Kymlicka, W. Politics in the Vernacular, chs. 4, 12 and 15.
- 51.
In this vein, Miller, D. On Nationality, p. 147.
- 52.
See Kymlicka, W. Multicultural Citizenship, ch. 3.
- 53.
See § 2.5.
- 54.
See § 5.5.
- 55.
See § 3.2.
- 56.
See § 4.2.
- 57.
See Additional Provision 1 of the Spanish Constitution. Although several Spanish territories such as Catalonia, Valencia and Mallorca had their own traditional laws and jurisdiction, this constitutional provision was understood to refer only to the Basque Country and Navarre. In contrast, Article 5 of Statute of Autonomy of Catalonia states that the self-government of Catalonia is based on its historical rights. However, in Judgement 31/2010, the Spanish Constitutional Court basically limited the effects of the historical rights of Catalonia to civil law.
- 58.
In this regard, constitutionalism and historical rights could be in tension, both for theoretical reasons (if constituent power is believed to be an unlimited power to create a new legal system) and for historical reasons (liberal constitutionalism, under French influence, tended to oppose the historicist traditionalism of the ancien régime). See Sieyès, E. Qu’est-ce que le Tiers état?
- 59.
Herrero, M. Derechos Históricos y Constitución, pp. 270–1. In this regard, Herrero says that a reform of the Spanish Constitution could not eliminate historical rights since, as it would involve breaking the constitutional pact, it would suppose “destruction of the Constitution” (p. 340).
- 60.
Ibid., p. 278.
- 61.
Arguably, the link between constitutional recognition of historical rights and internal self-determination can be more easily accepted.
- 62.
Arendt, H. On Revolution, pp. 9–10.
- 63.
See Buchheit, L.C. Secession, pp. 236–7.
- 64.
Each kind of injustice may define the group that has the right to secede. Buchanan, A. Secession, p. 142. However, “the internal cohesiveness of the people may evaporate as soon as the external irritant is removed”. Buchheit, L.C. Secession, p. 230.
- 65.
See § 11.4.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2020 The Author(s)
About this chapter
Cite this chapter
Bossacoma Busquets, P. (2020). Complementary Causes to Legitimize Secession. In: Morality and Legality of Secession. Federalism and Internal Conflicts. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-26589-2_4
Download citation
DOI: https://doi.org/10.1007/978-3-030-26589-2_4
Published:
Publisher Name: Palgrave Macmillan, Cham
Print ISBN: 978-3-030-26588-5
Online ISBN: 978-3-030-26589-2
eBook Packages: Political Science and International StudiesPolitical Science and International Studies (R0)