Guide Territorial Rights, Second Edition (Law and Philosophy Library)

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The current Ethiopian Constitution in fact includes such a hedged right to secede, requiring not only two super-majorities in favor of secession, but also a waiting period. So although appropriate constitutional design regarding secession must cope with the risks that secession will impair democratic processes, constitutional recognition of a right to secede does not appear to be incompatible with constitutionalism.

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Wayne Norman goes further, arguing that there are significant advantages to constitutionalizing conflicts over secession Norman The Supreme Court of Canada recently took the same position, arguing that the potentially disruptive process of secession by Quebec can be subjected to the rule of law by a process of negotiation and constitutional amendment. There is yet another argument for including a right to secede in a constitution. In some cases, when a new political entity is being created out of two or more independent or semi-autonomous entities, including a right to exit in the constitution of the new entity may be necessary as an inducement to join the new union.

There is much philosophical work to be done on the question of when and if so how the right to secede might be constitutionalized. It will require both an account of the principles of constitutionalism and of the morality of secession and an empirically-based knowledge of the conditions under which various constitutional arrangements can be reasonably expected to realize the principles of constitutionalism in a manner that is consistent with the morality of secession.

In the philosophical literature a distinction is drawn between two theories of the right to secede understood as a unilateral claim-right : Remedial Right Only Theories and Primary Right Theories. On this view secession is justified only as a remedy of last resort for persistent and serious injustices.

Different versions of Remedial Right Only Theories specify different lists of the injustices that can ground the remedial right. A more austere Remedial Right Only Theory would recognize only a , persistent, large-scale violations of basic human rights in the most extreme case, genocide or other mass killings as sufficient to justify unilateral secession. Primary Right Theories of the unilateral right to secede recognize that a group can have a right to secede on remedial grounds, but they contend that the unilateral right to secede can exist even when the group has not been subject to any injustice.

This second type of theory thus holds that there is a right to unilateral secession over and above whatever remedial and hence derivative right there may be. Primary Right Theories are of two types: Ascriptivist predominantly nationalist Theories and Plebiscitary or majoritarian Theories.

The former hold that certain groups whose memberships are defined by what are sometimes called ascriptive characteristics, simply by virtue of being those sorts of groups, have a unilateral claim- right to secede. The most common form of Ascriptivist theory holds that nations as such have a right of self-determination that includes the right to secede in order to have their own state. Plebiscitary Theories in contrast hold that a unilateral moral claim-right to secede exists if a majority residing in a portion of the state chooses to have their own state there, regardless of whether or not they have any common characteristics, ascriptive or otherwise, other than the desire for independence.

They need not be co-nationals or members of a distinct society. What the two types of Primary Right Theories have in common is that they do not require injustice as a necessary condition for the existence of a unilateral claim- right to secede. They are Primary Right Theories because they do not make the unilateral claim- right to secede derivative upon the violation of other, more basic rights, as the Remedial Right Only Theories do. No attempt will be made here to provide a comprehensive comparative evaluation of these rival theories see Buchanan Instead we will only identify only their major strength and weaknesses.

It is the taking of a part of the territory claimed by an existing state. Accordingly, rival theories of secession must be understood as providing alternative accounts of what it takes for a group to come to have a claim to territory that is at the time included in the territory of an existing state.

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We discover below that the most serious objections to the two varieties of Primary Right Theories question the cogency of their accounts of exactly what it is that gives a group within this state a claim to a portion of the territory claimed by the state. With respect to b the Remedial Right Only Theory begins with the presumption that existing states that are accorded legitimacy under international law have valid claims to their territories but then argues that such claims can be overridden or extinguished in the face of persistent patterns of serious injustices towards groups within the state.

Given the tendency for unilateral secession to provoke massive violence, the obvious strength of the Remedial Right Only approach is that it places a significant constraint on unilateral secession—namely, the requirement of a serious and persistent grievance of injustice suffered by the secessionists. To that extent, it captures the intuition that nonconsensual state-breaking, like revolution, is a grave affair requiring a weighty justification. More specifically, this view provides a plausible explanation of how the state can come to lose its entitlement to the territory: it does so by failing to do what gives states a moral claim to control territory in the first place, namely, providing justice for those within its jurisdiction.

Another strength of the Remedial Right Only approach is that it appears to provide the right incentives: States that are just or at least do not persist in very serious injustices are immune to legally permitted unilateral secession and entitled to international support in maintaining their territorial integrity. On the other hand, if, as the theory recommends, a unilateral right to secede as a remedy for serious and persistent injustices is acknowledged, this will give states an incentive to act more justly.

Some critics have complained that the Remedial Right Only approach to unilateral secession is disturbingly irrelevant to the concerns of many groups seeking self-determination. They say that in most cases it is nationalism that fuels the quest for self-determination, not grievances of injustice per se Moore a.


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An advocate of the Remedial Right Only view might respond that the latter is only an account of unilateral secession, not a comprehensive theory of self-determination. Thus the Remedial Right Only approach to unilateral secession is compatible with a fairly permissive stance toward intrastate autonomy, including various forms of self-government for national minorities within the state.

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The point is to uncouple the unilateral claim- right to secede from the various legitimate interests that groups—including national minorities—can have in various forms of self-determination short of statehood. Moreover, the Remedial Right Only approach need not reject claims to independence on the part of nations; it only rejects the much stronger assertion that nations as such have a unilateral right to secede. In many cases the groups that suffer persistent grave injustices are in fact nations, and therefore would be accorded the right to secede by the Remedial Right Only Theory.

To that extent it is inaccurate to say that this type of theory ignores the realities of national self-determination movements. But just as important, the Remedial Right Only Theory, when integrated into a comprehensive theory of self-determination that includes a principled account of when intrastate autonomy arrangements warrant international support, will address the concerns of national minorities in cases in which they do not have a unilateral right to secede.

What the Remedial Right Only approach does not do is concede that nations as such—independently of any persisting pattern of grave injustices—have a unilateral right to secede. But it can be argued that this is a virtue of the account, not a defect. The point is not simply that the Ascriptivist view is unfeasible; in addition its support for the idea of the ethnically exclusive state is an incitement to ethnic cleansing if not genocide.

However, this line of argument can supply an effective reply to the objection that Remedial Right Only Theories neglect the importance of nationalism only if the account of the right to secede they advance is properly situated in a plausible, more comprehensive theory of self-determination.

The appeal of Plebiscitary Theories is that they appear to make the determination of boundaries a matter of choice or, more accurately, of majority rule. To that extent they seek to bask in the popularity of democracy Philpott Plebiscitary Theories typically add another necessary condition, beyond majority preference in the region in question for secession: Both the seceding unit and the remainder state must be able adequately to perform the basic functions that justify or legitimize states in the first place.

Call this the State Viability Requirement. The appeal of Plebiscitary Theories is two-fold.

First, they avoid a problem that afflicts the other main type of Primary Right Theory, Ascriptivist Theories, because they do not require either an account of what constitutes a nation or an explanation of why nations have a right to their own state. Second, they are less conservative than Remedial Right Only Theories, allowing a democratic path to the redrawing of state boundaries, and this may be appealing, given the fact, as noted earlier, that existing boundaries may reflect national security needs and the need for large internal markets—considerations that are no longer as important in an era in which interstate wars are quite rare and markets extend across state borders.

However, given what is at stake in secession, it is far from clear that the mere fact that a majority of persons residing in a portion of a state desire independence should be a sufficient reason to give them a unilateral right to secede, in the absence of any grievances. Why should one assume that the mere fact of residence in an area authorizes persons to decide by majority vote not only to change their own citizenship but also to deprive others the nonsecessionists of their citizenship and to remove a part of the territory of the state without the consent of the citizens who happen to live outside the area in question?

In short, a serious weakness of existing Plebiscitary Theories, as Brilmayer emphasizes, is that they provide no account of the normative implications of occupancy of territory. The most developed versions of Plebiscitary Theories ground the right to secede in a right of political association, but the right of political association considered in itself tells us nothing about the right to territory.

What is needed is an account of why the fact that a group that happens to find itself in a particular region of the state has the right to transform their political association in that particular piece of territory into sovereign jurisdiction over it. To put the point bluntly, the Plebiscitary Theory seems to fly in the face of the doctrine of popular sovereignty. Absent an account of the normative significance of the fact of occupancy, Plebiscitary Theories do not make a convincing case that majority preference plus satisfaction of the State Viability Proviso imply the right to independent statehood.

Notice that it will not due for the Plebiscitary Theorist to add the premise that a group that is entitled by the right to political association to have its own territory. That would not explain why they have a right to the particular territory they happen to occupy. In addition, critics of the Plebiscitary view have pointed out that the justifications for democratic governance within given political boundaries do not support the thesis that boundaries may be redrawn simply by majority rule Buchanan a.

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There are two chief justifications for democratic governance. The first is that democracy is intrinsically valuable from the standpoint of a very basic principle of morality, namely, that all persons are entitled to equal consideration. The core idea is that the basic moral equality of persons requires that they have an equal say in the decisions that determine the basic character of their polity.

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But it appears that this justification for democracy does not imply that the decision whether to secede should be determined unilaterally by a majority in favor of secession in a portion of the territory of an existing state as opposed to being determined by a majority of all the citizens. The first justification for democracy tells us that all who are members of a particular polity—all who must live under one system of rules that determine the fundamental character of social life—should have an equal say or should participate as equals in deciding what those rules are to be.

But the principle of democratic rule cannot tell us what the boundaries of the polity should be, because in order to implement the democratic rule we must already have fixed the boundaries of the polity. The right to democratic governance is a principle that specifies a relation of equality among members of the same polity, not a right to determine the membership of polities or their territorial boundaries. The second chief justification for democracy is instrumental: It holds that democratic governance tends to promote important goods, including peace, freedom, and other dimensions of well-being.

Once again, the force of the justification depends upon the assumption that what is being justified is a process of decision making for a polity. The claim is that the well-being of all the citizens will be best served if all the citizens are allowed to express their preferences through voting, at least on fundamental matters that affect all.

Secession (Stanford Encyclopedia of Philosophy/Spring Edition)

Plainly, this argument cannot support the assertion that only some citizens those in a particular portion of the polity ought to be able unilaterally to decide a matter that will affect all citizens of the polity. Hence it cannot support the Plebiscitary Right view of the unilateral right to secede.

Because neither of the justifications for democracy supports the Plebiscitary view, the latter is not entailed by the commitment to democracy. There is one more problem that proponents of the Plebiscitary approach have not addressed, at least not explicitly. The issue is clearest in the case of irredentist secession.

Suppose that a portion of the territory of a state, S, whose inhabitants are predominantly members of minority ethnic group E1, secede in order to merge that territory with the territory of a neighboring state S1, in which the E1 ethnic group is the majority. Perhaps the seceding territory contains natural barriers to invasion from S2 and expensive fortifications. It is at least worth asking whether the interest that the secessionist group have in linking up with their ethnic comrades in S2 is morally weightier than the interest of the majority of the citizens of S1 in national security.

Remember that by hypothesis, the secessionist group has not suffered injustices at the hands of S1. Even if S2 does not invade S1, the new security situation created by the change of borders and the augmentation of S2s population may make S1 subject to domination by S2. It is not that S1 lacks the capacity to perform the legitimizing functions of a state; rather, the problem is that it has become vulnerable as a result of the secession.