Abstract
Consensual secessions are basically those negotiated and agreed with the parent State. Outside colonial contexts, there are no precedents for peaceful unilateral secessions in consolidated liberal democracies. This chapter examines some historical examples of predominantly peaceful separations in non-colonial contexts. Since compromise and agreement played an important role at the expense of unilateralism, this chapter then reflects on the requisite of principled negotiation.
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Notes
- 1.
See ch. 1.
- 2.
Crawford, J. The Creation of States…, p. 390. Medina, M. El derecho de secesión…, p. 157.
- 3.
Connolly, C. “Independence in Europe…”, pp. 70–2.
- 4.
Although some thought that Serbia recognized Kosovo de facto by virtue of the agreement of 19 April 2013 (see Pravda, “Serbia Loses the Fight for Kosovo”, 23 April 2013), recognition could be linked to an agreed “land swap” between both countries (see Pavković, A. “How Likely—And Dangerous—Is a Kosovo/Serbia ‘Land Swap’?” Verfassungsblog, 14 September 2018).
- 5.
See Crawford, J. The Creation of States…, p. 390 et seq.
- 6.
As discussed, the disintegrations of both the Russian and Yugoslav federations initially occurred through unilateral non-agreed secessions. Efforts were made, nevertheless, to treat the disintegration of Yugoslavia as a dissolution in order to avoid the precedent for secession. In the Soviet disintegration, the Russian Federation recognized the statehood of the former republics in exchange for them recognizing it as the continuator State. See ch. 7.
- 7.
Personal union refers to a union between kingdoms that keep their separate legal orders but within a union in the person of the monarch. In this context, throughout the nineteenth century, Norway kept its own Parliament, Government and Judiciary. According to Article 1 of the Act of Union, the Kingdom of Norway formed a free, independent, indivisible and inalienable Kingdom united with Sweden under the same King. Buchheit, L.C. Secession, p. 98.
- 8.
According to several sources, about 99.9% voted in favour of secession. In particular, out of a turnout of 85.4% of the male voters, 368,208 voted in favour of secession and only 186 against. Pavković, A.; Radan, P. Creating New States, p. 73.
- 9.
Buchheit, L.C. Secession, pp. 98–9.
- 10.
Dion, S. “Why Is Secession Difficult…?”, p. 270.
- 11.
In similar vein, Birch, A.H. “Another Liberal Theory of Secession”, p. 598.
- 12.
The sources consulted give figures of over 95%. More specifically, turnout was 98%, 97% voted in favour of terminating the Union and 95% in favour of the republic. Results announced on 1 June 1944 by Thor Thors, on behalf of the Minister of Foreign Affairs of Iceland: http://images.library.wisc.edu/FRUS/EFacs/1944v03/reference/frus.frus1944v03.i0021.pdf.
- 13.
The USA was one of the first States, if not the first, officially to recognize Iceland as an independent Republic in June 1944. Embassy of Iceland Washington DC, “Iceland and the US”, http://www.iceland.is/iceland-abroad/us/wdc/iceland-and-the-us/. In the words of the concurrent resolution of the Senate and the House of Representatives of the USA in June 1944: “Whereas the people of Iceland in a free plebiscite on May 20 to 23, 1944, overwhelmingly approved the constitutional bill passed by the Althing providing for the establishment of a republican form of government; and whereas the Republic of Iceland will be formally established on June 17, 1944: now, therefore, be it resolved by the Senate (the House of Representatives concurring), that the Congress hereby expresses to the Icelandic Althing, the oldest parliamentary body in the world, its congratulations on the establishment of the Republic of Iceland and its welcome to the Republic of Iceland as the newest republic in the family of free nations”.
- 14.
Nielsen, K. “Liberal Nationalism and Secession”, p. 116.
- 15.
For Buchheit, it was an amicable secession. Buchheit, L.C. Secession, p. 99.
- 16.
Mokhtar, K.A. “Confusion, Coercion and Compromise in Malaysian Federalism”, in Hardin, A.J.; Chin, J. (ed.) 50 Years of Malaysia, p. 243.
- 17.
On 16 September 1963, “Singapore, Sabah and Sarawak were officially federated with the existing states of Malaya, thereafter known as the Federation of Malaysia (Malaysia). However, this new federation showed the first sign of trouble less than 23 month later when it expelled Singapore on 9 August 1965 due to significant and profoundly different political and economic perspectives between the sub-national government of Singapore and the central government”. Salleh, A. et al. “Constitutional Asymmetry in Malaysia” in Popelier, P.; Sahadžić, M. (ed.) Constitutional Asymmetry in Multinational Federalism, p. 317. See also Leitch Lepoer, B. “Road to Independence”, in Leitch Lepoer, B. (ed.) Singapore.
- 18.
However, prior to the agreement on dissolution of the Federation on 31 December 1992, the Slovak Parliament—unlike the Czech—had issued a declaration of sovereignty on 17 July 1992. Pavković, A.; Radan, P. Creating New States, p. 77. Picazo, S. “First Sovereignty. And Then What?” Presència, 28 April 2013, pp. 7, 55.
- 19.
Crawford, J.; Boyle, A. Referendum on the Independence…, pars. 74–8.
- 20.
This is considered a case of secession by: Sunstein, C.R. “Constitutionalism and Secession”, p. 644. Pavković, A.; Radan, P. Creating New States, p. 77. The latter point out that the secession of Slovakia and the dissolution of the Federation were coordinated to take effect on the same day.
- 21.
Crawford, J. The Creation of States…, p. 402. Saiz Arnaiz, A. “Constitución y secesión”, p. 3.
- 22.
See Pavković, A.; Radan, P. Creating New States, p. 77. Sunstein, C.R. “Constitutionalism and Secession”, p. 644. Wellman, C.H. A Theory of Secession, p. 78.
- 23.
Pavković, A.; Radan, P. Creating New States, p. 77.
- 24.
Dion, S. “Why Is Secession Difficult…?”, p. 270.
- 25.
Pavković, A.; Radan, P. Creating New States, p. 78.
- 26.
Crawford, J.; Boyle, A. Referendum on the Independence…, pars. 59, 79–92.
- 27.
- 28.
The Supreme Court is not completely clear about this. In some places, it refers to the duty to negotiate to respond to the clearly expressed desire for secession (“to negotiate constitutional changes to respond to that desire”). In others it expressly mentions the duty to negotiate secession (“A right and a corresponding duty to negotiate secession cannot be built on an alleged expression of democratic will if the expression of democratic will is itself fraught with ambiguities”. “In the event secession negotiations are initiated, our Constitution, no less than our history, would call on the participants to work to reconcile the rights, obligations and legitimate aspirations of all Canadians within a framework that emphasizes constitutional responsibilities as much as it does constitutional rights.”). And in others it seems to minimize or play down the duty to negotiate (“No negotiations could be effective if their ultimate outcome, secession, is cast as an absolute legal entitlement based upon an obligation to give effect to that act of secession in the Constitution. Such a foregone conclusion would actually undermine the obligation to negotiate and render it hollow.”). See Reference re Secession of Quebec.
- 29.
In similar vein, Mancini, S. “Secession and Self-Determination”, p. 499.
- 30.
See Tierney, S. Constitutional Law and National Pluralism, pp. 256–71. Tierney, S. Constitutional Referendums, pp. 144–5.
- 31.
Section 3(2) of the Clarity Act establishes that: “No Minister of the Crown shall propose a constitutional amendment to effect the secession of a province from Canada unless the Government of Canada has addressed, in its negotiations, the terms of secession that are relevant in the circumstances, including the division of assets and liabilities, any changes to the borders of the province, the rights, interests and territorial claims of the Aboriginal peoples of Canada, and the protection of minority rights”.
- 32.
According to Tierney, “in defining ‘unilateral’ secession in the way that it does, i.e. as a right to effectuate secession without prior negotiations, the court seems to be recognizing that Quebec, while not having a unilateral right, does have a prima facie right to secede which the rest of Canada may not frustrate provided Quebec negotiates the details of secession in good faith. (…). In other words, if the people of Quebec clearly repudiate the existing constitutional order, and if Quebec is prepared to negotiate the practicalities of secession in good faith, then the rest of Canada has no right to deny the principle of secession or to frustrate negotiations; all that the rest of Canada can do is negotiate the details of that secession”. “In short, therefore, Quebec seems to have a constitutional right to secede, albeit following negotiations (which Quebec, the other provinces and the federal government have a duty to enter into in good faith) if a clear answer to a clear question is achieved in a referendum.” Tierney, S. Constitutional Law and National Pluralism, pp. 263–5. Similarly, Norman, W. Negotiating Nationalism, p. 200. Norman, W. “From quid pro quo to modus vivendi…”, p. 189.
- 33.
A technical reason to appoint three judges from Quebec is to ensure sufficient knowledge of civil law. Hogg, P.W. Constitutional Law of Canada, p. 205. Woehrling, J. in Argullol, E.; Velasco, C. (dir.) Institutions and Powers in Decentralized Countries, § IV (3). That said, there is a certain belief among Quebec citizens and constitutionalists that the British case law of the Judicial Committee of the Privy Council (the summit of Canadian justice until 1949 located in London) was more favourable to the interests of Quebec than the current Supreme Court of Canada.
- 34.
Beyond Canada, the composition of the Belgian Constitutional Court based on language parity seems to ensure acceptance by the Dutch- and the French-speaking communities. The Court also helped to secure institutional balances by interpreting sub-State autonomy broadly and legitimizing compromises of institutional engineering. Popelier, P. “Asymmetry and Complexity as a Device for Multinational Conflict Management” in Popelier, P.; Sahadžić, M. (ed.) Constitutional Asymmetry in Multinational Federalism, pp. 33–4. Popelier, P. “The Disintegration of Belgium as the Chronicle of a Death Foretold?” in Belser, E.M.; et al. (ed.) States Falling Apart? pp. 226–7.
- 35.
When recommending to refer the issue of Quebec’s secession to the Supreme Court, Monahan and Bryant started their proposal with the words: “The truism that courts are safety valve, without which no democratic society can survive, is tested in times of national crisis”. Monahan, P.J.; Bryant, M.J. Coming to Terms…, p. 42.
- 36.
In similar vein, see Tierney, S. Constitutional Law and National Pluralism, ch. 7.
- 37.
See § 11.5.
- 38.
See § 8.1.
- 39.
Scotland’s Future, p. xv, 20. By contrast, the UK Government said that the duration of the negotiations was impossible to predict. Scotland Analysis: Devolution and the Implications of Scottish Independence, par. 2.41.
- 40.
Although this statement was not expressly supported by the successive declarations, the lack of good faith and subsequent failure of the negotiations led, in the end, to recognition of the former Yugoslav republics as States. Caplan, R. Europe and the Recognition…, pp. 20–1.
- 41.
For instance, if the amending procedure requires giving voice to all citizens of the parent State through referendum and this would condemn secession to failure, it could be, bearing in mind the circumstances and context, contrary to the obligation to negotiate in good faith.
- 42.
See UK Government. Scotland Analysis: Devolution and the Implications of Scottish Independence, 2013, par. 2.30.
- 43.
In similar vein, Tierney, S. Constitutional Referendums, pp. 147–8.
- 44.
See § 8.2.
- 45.
See Tierney, S. “The Scottish Independence Referendum”, in Mcharg, A.; et al. (ed.) The Scottish Independence Referendum, pp. 53–73. One possible criticism could be that the economic aspects predominated (excessively) most of the public debates about the referendum. The national and identity elements were minimized and hidden as if they could not or should not form part of a public, reasonable deliberation on independence.
- 46.
Arzoz, X. “Nación minoritaria, principio democrático y reforma constitucional”, p. 1932.
- 47.
See Lasagabaster, I. Consulta o Referéndum. Corcuera Atienza, J. “Soberanía y Autonomía”. López Basaguren, A. “Sobre referéndum y comunidades autónomas”.
- 48.
Organic Act 20/2003 introduced Articles 506 bis and 521 bis in the Criminal Code, which were, under the premiership of Rodríguez Zapatero, repealed by Organic Act 2/2005.
- 49.
See § 11.2. There was an ambiguity about whether this was an authorization given by the Basque Parliament to the Basque president to call the referendum or a direct calling of it by the Parliament since Statute 9/2008 already included the questions, the date and the procedure for the consultation. Various reasons could explain this ambiguity: (1) to leave the referendum pending on the results of the dialogue, (2) to conceive the consultation as a mechanism to exert pressure to negotiate, and (3) to concentrate the constitutional dispute under the jurisdiction of the Constitutional Court.
- 50.
See § 11.5.
- 51.
See Bossacoma, P. “Competències…”, pp. 277–8. Bossacoma, P.; López, H. “The Secession of Catalonia”, pp. 112–3.
- 52.
Ferreres, V. “The Secessionist Challenge in Spain”.
- 53.
Ruiz Soroa, J.M. “Regular la secesión”, pp. 197–201.
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Bossacoma Busquets, P. (2020). Consensual Secession. In: Morality and Legality of Secession. Federalism and Internal Conflicts. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-26589-2_12
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