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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Secession

Elisa Novic, Priya Urs

Subject(s):
Secession — State territory

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Introduction

1.  Secession is the process by which part of the territory of an existing state breaks away from that state. In some cases, moves towards secession have been the natural consequence of attempts to revise the territorial boundaries of newly independent states hastily demarcated during decolonization (Decolonization; colonization). In others, territorial independence has been claimed as a remedy against gross human rights violations of individuals or groups within existing states (Mancini 486; see also Territorial Integrity and Political Independence). Secessionist claims often result in outbursts of violence, which may escalate to the level of internal armed conflict. As a result of the enormous political and legal implications for existing states, secession is an important subject of political theory, and justifications for secession reflect competing constructions of the state itself (Kreptul 42–62).

2.  From a legal perspective, the idea that a right to secede may exist in international law gained momentum in the context of decolonization, offering a justification for the independence of colonial territories by conferring a right of self-determination upon ‘peoples’ (Peoples) (UNGA Res 1514 (XV) ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’ (14 December 1960)). Beyond decolonization, however, international law has so far not been able to provide clear guidance as to the cases and contexts in which the right to self-determination, enshrined in Art. 1 International Covenant on Civil and Political Rights (1966), would include a right to secede. As a potential threat to international peace and security, international law is mainly concerned with attempts at unilateral secession that challenge the sovereignty of existing states, and much less so with consensual secession carried out with the agreement of the parent state (Crawford (1998) 85–6). Thus, the tendency in international law has been to evaluate secession in terms of its consequences, emphasizing the legality or illegality of the result (independence of the seceding territory or its incorporation into the territory of another state) rather than the process itself. In most cases, secession that has taken place effectively is simply a question of fact, without the conferral of legality upon entities that successfully secede from an existing state (Crawford (1998) 87). It is not surprising that the international community has been much more reluctant to recognize a right to secede outside decolonization processes. The doctrine of remedial secession, which seeks to recognize a right to secede triggered by gross human rights violations and the denial of the internal right of self-determination of peoples within the territory of a state, has received only modest support in the practice of states (Del Mar 82–4). The International Court of Justice (‘ICJ’) for its part refused to settle the issue in its Kosovo (Advisory Opinion) (2010).

3.  Contrary to international law’s hands-off approach, secession remains an eminently constitutional question. Secession directly impacts the foundations upon which an existing state is built, and affects not only its territorial limits, but also the terms of its Constitution and functioning of its institutional structures. Claims to secede are often addressed within national legal frameworks, either mediated through constitutional processes or domestic politics of the states in which these claims emerge. The challenge that a desire to secede poses to the territorial integrity of an existing state requires that the claim be addressed within the jurisdiction of that state, and provokes responses ranging from political negotiation to forceful suppression.

4.  This entry attempts to draw a general taxonomy of constitutional approaches to secession, relying on the experiences of states that have or continue to face secessionist challenges within their territories. In undertaking an empirical review of historical and political contexts in which secession has been mediated within constitutional frameworks, it draws a line between cases in which a right to secede has been incorporated into constitutional texts, and those in which attempts to secede are mediated within constitutional frameworks even in the absence of an explicit constitutional right to secede, through what the authors term ‘constitutionalized secession’.

B.  A Constitutional Right to Secede

5.  The overwhelming majority of state constitutions are either silent on or prohibit the secession of territory by emphasizing in explicit terms the territorial unity of the state. This tendency applies equally to unitary and federal states (unitary state). Art. 1 of the 2004 Constitution of Afghanistan, for instance, provides that Afghanistan shall be a ‘unitary and indivisible state’. Other examples include the Commonwealth of Australia Constitution Act, 1900, which in its Preamble describes Australia as ‘one indissoluble Federal Commonwealth’ comprising the peoples of the former British colonies. This reflects the familiar argument that secession poses a challenge to the sovereignty of existing states. Those constitutions that do recognize a right to secession are highly exceptional.

1.  Typology of Constitutional Rights to Secession

6.  A handful of states have explicitly recognized a right to secede in their constitutional texts, usually in anticipation of the secession of an already well-defined territory at the time of drafting, or having included these provisions as a means of persuading a territory to be incorporated into the state.

7.  In some cases, the inclusion of a constitutional right to secede has been rooted in the recognition of a right of self-determination of peoples. In the context of decolonization, the preamble of the 1958 French Constitution, while emphasizing the indivisible character of the state (Art. 1), ‘offers to the overseas territories which have expressed the will to adhere to them new institutions founded on the common ideal of liberty, equality and fraternity and conceived for the purpose of their democratic development’. In this context, the French Constitution maintains an exception for its overseas territory of New Caledonia, suggesting implicit recognition of its self-determination status. The text of the Constitution provides that the conditions and timeframe in which the population of New Caledonia is to vote on the attainment of pleine souveraineté (full sovereignty) shall be determined by statute, in accordance with the 1998 Nouméa Agreement (Arts 76–7). In keeping with these provisions, the French Organic Law No 99-209 of 19 March 1999 relating to New Caledonia (Arts 216–22) provides for consultation on independence during the term of Congress beginning in 2014; a vote on independence is scheduled to take place in 2018.

8.  A right to secession may also be provided in the constitutions of newly independent territories whose borders have been defined arbitrarily by the former colonizing powers regardless of ethnic, national or linguistic considerations (see also Uti possidetis Doctrine). The 1947 Constitution of the Union of Burma, for example, permitted the secession of states from the Union by outlining the procedures for the exercise of a right to secede through a supervised plebiscite in the concerned state, but not less than ten years after the coming into force of the Constitution (Arts 201–6). As the following examples reveal, however, many of these provisions are no longer in force. The current 2008 Constitution of the Republic of the Union of Myanmar goes so far as to declare that no part of its territory ‘shall ever secede from the Union’ (Art. 10).

9.  The 1991 Transitional Period Charter of Ethiopia recognized independence as part of the right of self-determination of nations, nationalities and peoples, when the rights specified in the Charter were ‘denied, abridged or abrogated’, reflecting to some extent the emerging idea of remedial secession. Particularly in the context of Eritrean independence, this provision has been interpreted as corresponding to a right of secession (Michaeu 388). In 1993, the referendum on the independence of Eritrea from Ethiopia witnessed an overwhelming majority in favour of independence. Interestingly, the 1994 Constitution of the Federal Democratic Republic of Ethiopia also confers upon nations, nationalities and peoples an extensive right to secede as part of their ‘unconditional right to self-determination’ (Art. 39).

10.  The recognition of a constitutional right of self-determination—including a right to secede—has not been limited to the context of decolonization, as parallel developments in international law might suggest. The 1974 Constitution of the Socialist Federal Republic of Yugoslavia (‘SFRY’) created a federal republic on the basis of ‘the right of every people to self-determination, including the right to secession’ (Basic Principles, Section I). The question of whether the constituent republics of the former Yugoslavia had a right to secede was a matter of considerable constitutional debate even earlier, in the contexts of its 1946 and 1963 Constitutions, which contained similar provisions. Ultimately, these provisions remained untested; while some argued that these rights were exercised and exhausted during the establishment of the SFRY, others invoked the territorial integrity of the state to deny these references to secession any practical effect (Radan 189, 193).

11.  As these examples suggest, the viability of a constitutional right to secede is often limited to component federal units or other entities that possess clear territorial definition (Weller (2008) 33). This may explain the reluctance of some states to adopt federal arrangements or to confer autonomy (Autonomy) upon portions of their territories. The 1993 Constitution of the Russian Federation, for example, emphasized the sovereignty of the Federation over its territory; suggesting that constituent republics could no longer invoke pre-existing sovereignty as the basis for their claims to secede (Grote).

2.  Exercising the Constitutional Right to Secession

12.  Arguably, the regulation of secession through constitutionally mandated procedures is likely to promote negotiated rather than unilateral secession (Mancini 495). The inclusion of constitutional provisions that specifically outline the manner in which a right of secession is to be exercised lends support to their practical implementation, as the following examples suggest. These cases illustrate the obvious advantages of outlining procedures for secession in constitutional texts, but it is important to acknowledge that their inclusion was usually the result of specific political circumstances that anticipated their use at the time of drafting. Interestingly, while it is argued by some that the power of judicial review is necessary to give effect to a constitutionally entrenched right to secede (Sunstein 647), the following examples reveal that the invocation of these constitutional provisions in various contexts has been through political rather than judicial processes.

13.  A contemporary case of secession successfully executed through constitutionally mandated procedures was the independence of Montenegro from the State Union of Serbia and Montenegro (formerly the Federal Republic of Yugoslavia; Yugoslavia, Dissolution of). Art. 60 of the 2003 Constitutional Charter of the State Union of Serbia and Montenegro provided in elaborate detail the procedure to initiate a change in the relationship between the constituent states, including the ‘breaking away’ of a state from the Union. Upon the expiry of a three-year period, either state could initiate proceedings to withdraw from the Union by carrying out a referendum in line with ‘internationally recognized democratic standards’. In 2006, when Montenegro conducted an independence referendum, the answers to vital questions of state succession had already been provided to a large extent in Charter provisions that anticipated the eventual secession of Montenegro from the Union (Vidmar (2007) 97).

14.  The most recent example of secession through constitutional arrangements was the independence of South Sudan from Sudan in 2011. Following the conclusion of the 2005 Comprehensive Peace Agreement between the Government of Sudan and the Sudan People’s Liberation Movement (SPLM)/Sudan People’s Liberation Army (SPLA), the 2005 Interim National Constitution of the Republic of Sudan was enacted, giving considerable autonomy to Southern Sudan (Art. 2) in anticipation of its independence. This is evidenced by Art. 222, which not only set out the timeline for conducting an internationally monitored referendum at the end of a six-year period (Art. 222(1)), but also specified the choice between unity and secession to be made by the people of Southern Sudan (Art. 222(2)). The 2011 independence referendum was implemented in accordance with these provisions, leading to the consensual secession from Sudan of a newly independent South Sudan.

15.  The attempted secession of Nevis from the Federation of Saint Kitts and Nevis in 1998—though unsuccessful—also reiterates the viability of secession regulated by constitutional provisions. The 1983 Saint Christopher and Nevis Constitutional Order provided the procedure for Nevis to leave the Federation, requiring a two-thirds majority vote among the members of the Nevis Island legislature, and a subsequent two-thirds majority referendum among its population (Art. 113). The elaborate constitutional provisions outlining this procedure were implemented effectively in the independence referendum conducted in 1998, though the required two-thirds majority was not reached in this instance (Griffiths 287–8).

16.  In other situations, constitutional provisions that explicitly recognized a right to secede but did not elaborate upon the procedures for its exercise remained unused, and seceding entities preferred to resort to unilateral secession. A well-known example is the text of the 1977 Constitution of the Former Union of Soviet Socialist Republics (‘USSR’), which provided that constituent republics whose accession to the USSR was through ‘voluntary association’ (Art. 70) shall ‘retain the right freely to secede’ (Art. 72). The conferral of a constitutional right of secession upon pre-defined territorial entities was in this case a pragmatic means of securing their agreement to accede to the Union, but not intended for practical application. Ultimately, during the eventual dissolution of the USSR, the Baltic states did not invoke the constitutional right to secede in Art. 72, choosing instead to reject the constitutional order altogether (Weller (2009) 49). This was also the case during the dissolution of the SFRY, triggered by the unilateral secession of Croatia and Slovenia.

17.  Even where constitutionally established procedures for secession exist, they have not prevented secession from occurring outside such constitutional boundaries, as illustrated by the secession of Crimea from Ukraine. The 1996 Constitution of the Republic of Ukraine leaves a door open to ‘alter’ Ukraine’s territory through an ‘All-Ukrainian referendum’ (Art. 73), in sharp contrast with the ‘All-Crimean one’ conducted in 2014 (Venice Commission, Opinion No 762/2014). The High Council (Verkhovna Rada) of the Autonomous Republic of Crimea decided to submit to referendum the question of its reunification with the Russian Federation (Resolution No 1702–6/14 on Holding of the All-Crimean Referendum (6 March 2014)). This referendum was open only to Crimean residents, who voted overwhelmingly in favour of Crimea’s secession from Ukraine. While the Constitution did entitle the High Council to organize referenda on matters related to its internal organization (Art. 138.2), such a right is unlikely to be interpreted as extending to the question of its secession, particularly in light of the rest of the Constitution. Numerous provisions consistently refer to Ukraine’s ‘territorial unity and indivisibility’ (see eg Arts 2, 132), while Art. 134 refers to the autonomous Republic of Crimea as an ‘inseparable entity’. The Constitutional Court of Ukraine has also rejected the constitutionality of Resolution No 1702–6/14 (Judgment on all-Crimean Referendum [2014] No 2-rp/2014 (Ukraine)).

C.  ‘Constitutionalized’ Secession

18.  In cases where the constitution is silent on the possibility of a given territorial entity seceding from the parent state, questions of secession may nevertheless be processed in a consensual—and a fortiori constitutional—manner, through judicial interpretation or political settlement.

1.  Judicial Interpretation

19.  Secessionist questions may be referred to a judicial higher instance (eg supreme or constitutional courts), but the limited consultations of this sort have not resulted in opinions in favour of secession, rather the contrary. As constitutional adjudicating bodies, courts are indeed the guardians of their own constitutions, a role that may be seen as a priori neutralizing the possibility of conferring legality or legitimacy upon secessionist claims that ultimately challenge constitutional integrity and therefore contravene the essence of the institution’s role and mandate. This is reflected in the Texas v White judgment of the Supreme Court of the United States, delivered in the wake of the American Civil War (1861–65). In the absence of a constitutionally entrenched right to secede, southern states had relied on the residual powers conferred upon them in Art. X of the 1789 United States (‘US’) Constitution as the basis for their withdrawal from the Union. Called on to review the constitutionality of the secession of Texas, the US Supreme Court famously declared that ‘[t]he Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States’ (Texas v White 74 US 700 [1869] 725 (US)). The Court reasoned that the ‘perpetual’ union established by the 1778 Articles of Confederation, made ‘more perfect’ by the Constitution, precluded the secession of Texas from the Union (Texas v White 74 US 700 [1869] 725 (US)). Still, this decision was an ex post evaluation of a state’s unilateral declaration of independence, and the Court did not play a role in mediating competing claims during the various attempts at secession.

20.  More recent cases shed light on the nature of the legal and political arguments that a constitutional adjudicating body needs to consider in order to rule on secessionist claims within its own constitutional order. In 1998, the Supreme Court of Canada (Cour suprême du Canada) answered in a landmark advisory opinion the questions of whether international law and constitutional law respectively enabled ‘the National Assembly, legislature or government of Quebec [to] effect the secession of Quebec from Canada unilaterally’ (Reference Re Secession of Quebec Case (Can)). To begin with, the Court understood the constitutional order as going beyond the written constitution, so as to encompass the underlying principles of federalism, democracy, constitutionalism and the rule of law, and respect for minorities. If Quebec’s right to unilateral secession would be based on the principle of democracy, its exercise would nevertheless affect the other principles as they apply to the people of the remaining Canadian provinces. The Court did not itself settle the dilemma but rather deemed it a political matter, to be addressed through political negotiations. As such, it concluded that ‘[a] clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in the confederation would have to recognize’ (at 222). Such a result would open the doors to negotiation with the federal government and the other provinces of Canada, the outcome of which remains indeterminate. By the same token, the Court divested itself of any involvement in the outcome by leaving a number of questions unanswered, including the meaning of ‘a clear majority’ (direct democracy).

21.  These questions are still open today: Quebec rejected independence in successive referenda twice in 1980 and 1995. Since then, political circumstances have not allowed for renewed public consultation along the lines of the 1998 Canadian Supreme Court’s constitutional guidance. The Canadian House of Commons passed the Clarity Act in 2000, in which it integrated the Supreme Court’s requirements of a clear question and a clear majority in order for the Government of Canada to enter into negotiations with a province that expressed its will to secede, though without providing clear criteria for implementing these requirements. The Act notably emphasizes the need for a constitutional amendment in case of negotiated secession (Clarity Act: 29 June 2000 (SC 2000, c 26) (Can)).

22.  In contrast, the Constitutional Court of Spain (Tribunal Constitucional de España) framed the question of Catalonia’s independence in a much narrower manner, locking it into the limits of Spain’s written constitution, which does not allow for secession. On several occasions, the Catalonian Parliament adopted resolutions opening the doors to popular consultations on the question of Catalonian independence. In contrast, Art. 2 of the 1978 Spanish Constitution states that ‘[t]he Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards; it recognizes and guarantees the right to autonomy of the nationalities and regions of which it is composed and the solidarity among them all’. Art. 155 is also noteworthy, as it refers to cases where ‘an Autonomous Community … acts in a way that is seriously prejudicial to the general interest of Spain’, thus weakening considerably the constitutionality of any secessionist claim. On the basis of the ‘unconditional primacy of the Spanish Constitution’ (STC 259/2015 (2 December 2015) (Spain)), the Constitutional Court overruled several resolutions of the Catalonian Parliament establishing, for instance, the ‘sovereignty of the Catalonian People’ (Resolution 5/X (23 January 2013), overruled in STC 42/2014 (25 March 2014) (Spain), or initiating ‘a process of disconnection’ from Spain (Resolution 1/X1 (9 November 2015), overruled by STC 259/2015 (2 December 2015) (Spain)). The Court, however, emphasized the possibility of proceeding to a ‘total revision’ of the Constitution (Art. 168). This strictly formalist approach to the issue of Catalonia’s independence is unlikely to settle the debate, particularly in light of the Catalonian Parliament’s warning that ‘the process of democratic disconnection will not be subject to decisions made by the institutions of the Spanish State and in particular the Constitutional Court’ (Resolution 1/X1 (9 November 2015)).

23.  These two approaches by apex courts show that secessionist claims are ultimately a political matter, to which judicial interpretation may contribute only to a limited extent. Judicial interpretation may not substitute the exercise of executive and legislative powers that are ultimately responsible for the state’s territorial integrity, but may, where necessary, initiate the process of constitutional amendment to overcome constitutional hurdles to the secession of part of the state’s territory.

2.  Political Agreements

24.  In some cases, questions of secession find their way directly to the political sphere in anticipation of the independence of part of the territory of a state, often under international auspices. As with the independence of Eritrea and South Sudan, political agreement has played an important role in preceding the constitutionalization of the right of secession for predefined territorial entities (eg 1991 Provisional Charter of the Transitional Government of Ethiopia; 2005 Comprehensive Peace Agreement between Sudan and South Sudan, which was the starting point for the constitutionalization of a right to secession in the Interim National Constitution of the Republic of Sudan (6 July 2005)).

25.  If the secession of Eritrea and South Sudan occurred in the context of peace negotiations, it may also be possible for consensual secession to be mediated through internal political negotiations, even if not allowed per se by the parent state’s constitutional framework. The success of these endeavours depends, of course, on the existence of constitutional barriers—if any—to political negotiations towards secession in the existing constitutional framework. The best example of such a practice is the Edinburgh Agreement between the Governments of the United Kingdom and Scotland of 15 October 2012, through which the two parties agreed to carry out a referendum on Scottish independence. The sui generis character of the agreement is illustrated by the gradual increase of self-governing powers for Scotland (see Scotland Act 1998 (1998 c.46)) that preceded it, creating the conditions for a breakthrough of the Scottish Nationalist Party (‘SNP’) at the Scottish legislative elections, consequently strengthening the legitimacy of separatist claims. It is worth noting that there existed no clear legal basis to support the legality of a Scottish Parliament-induced secessionist process, which would have likely faced the United Kingdom (‘UK’) Supreme Court’s veto or censorship (Halliday 42). Nevertheless, the constitutional barriers to secession in this instance were relatively low, permitting negotiations to proceed in the absence of a pre-defined constitutional procedure.

26.  This agreement amended the 1998 Scotland Act with a view to providing a legal basis for a referendum on Scottish secession (Section 30). However, the status of the outcome of the intended referendum was ambiguous, with provisions drafted in somewhat general terms, and mainly addressing organizational modalities (Agreement between the United Kingdom Government and the Scottish Government on a Referendum on Independence for Scotland (Edinburgh 15 October 2012), ‘Memorandum Agreement’). The crucial question of whether the result of the referendum would be advisory or binding—especially in the case of an affirmative vote—remained unsettled, as the UK legal order does not foresee any such possibility (Bell 2012). The Memorandum Agreement only stated ‘that the referendum should … deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect’.

27.  In 2014, the House of Lords issued a report outlining the constitutional consequences of a vote in favour of independence from the UK. Unlike the Canadian approach, the report seems to acknowledge the binding character of a ‘yes vote’ and discusses relevant post-independence consequences, such as defining the ‘continuator State’ to international engagements and when the UK would cease to represent Scotland’s interests (House of Lords, ‘Scottish Independence: Constitutional Implications of the Referendum’). The Scottish people ultimately rejected independence in a referendum on 18 September 2014.

28.  In light of the subsequent UK-wide referendum result on 23 June 2016 in favour of leaving the European Union, the question of Scottish independence is once again up for discussion. In any event, the Scottish experience supports the view that where no legal basis exists for resolving questions of secession, a referendum whose terms and outcome are agreed upon through political negotiations, may offer a solution.

29.  In these cases, judicial or political interventions constituted an important step towards opening the parent state’s constitutional framework to claims for secession and the organization of a referendum on independence. Each example shows that a right to secession may be constitutionalized in an ad hoc manner that addresses the specific circumstances of a case without creating a precedent for the further dissolution of the parent state.

D.  Conclusion

30.  The varied cases discussed so far reveal that the constitutionalization of a right to secede emerges as a means to soothe secessionist tendencies (as with Quebec and Scotland) or prevent political escalation into a potential armed conflict (as with New Caledonia and Montenegro). Constitutional processes and their materialization in the form of independence referenda may even allow for democratic legitimation of secessionist claims. In other cases, the government of the parent state may make a request for judicial involvement in the interpretation of the constitutional text, and secessionists themselves rely on the legitimacy of state institutions to legitimize the path to independence. However, as this entry displays, constitutional approaches to secession rarely address the concrete modalities of its exercise, which are often dealt with in an ad hoc way.

31.  As such, while there are obvious advantages to outlining procedures for secession in constitutional texts (Jovanović 76–81), secession itself remains a questionable process from both national and international law perspectives. In a 2016 report, the House of Lords thus adopted a more cautious approach to the question of devolution of powers, in reaction to the (failed) Scottish consultation on independence, in light of the consequences of the overall Union’s integrity (House of Lords, ‘The Union and Devolution’). Such worries indeed remind us of ‘Balkanization’––the risk of multiple secessions resulting in smaller states that may be unfit for international economic competition and are likely to suffer from political instability.

32.  The constitutional recognition of a right to secession and its subsequent exercise are indeed far from constituting an exclusive solution to the overall question of secession. Secession, once realized, triggers a whole range of new constitutional issues for both the seceding state and its parent state, beginning with the territorial delimitation between the two states, and the recognition of the rights of minorities in the newly constituted state. This is well evidenced in both the cases of the Serbian minority in Kosovo and in South Sudan, which quickly fell into political turmoil and civil war after its independence. Though matters of state succession are legally distinguishable from secession—with secession referring to the process by which the new state emerges, and succession addressing its legal consequences—negotiations on secession may nevertheless address crucial questions of state succession. The lack of uniform practice on matters of state succession reveals a need for ad hoc political agreements to address matters ranging from treaty obligations and nationality, to membership in international organizations and sharing of liabilities, upon the birth of the seceding state (see also State Succession in Treaties; State Succession in Other Matters than Treaties).

33.  Ultimately, secession as a legal concept remains stubbornly embedded in the interface among international law, constitutional law and politics—requiring the striking of a difficult balance between conflicting values and interests in order to avoid an escalation to armed conflict (application of international law in domestic legal systems). From the examples discussed in this entry, however, it is not easy to draw a clear connection between the existence and use of constitutional frameworks to mediate questions of secession and the likelihood of violent, unilateral attempts to secede.

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