Liberal political theorists of secession are split on the issue of constitutionalising secession.
Cass Sunstein, who argued against granting any constitutional right of secession has claimed that 'a right of secession would promote strategic behaviour by political subunits that are supposed to obediently carry out their democratic burden of providing the State with benefits necessary to carry out distributive justice’.866 For example, economically rich regions like the Canadian province of Alberta would try to avoid the hard work of creating a healthy democracy by not supplying the democratic State with the economic resources necessary to dispense justice to the citizenry.867 Sunstein believed that constitutionalising secession would further threaten 'constitutional pre-commitment strategies, in ways that both protect and constrain the excesses of majoritarian democratic politics.868 For him, 'if the right to secede
863 Philpott, 'In Defense of Self-Determination' (n 780).
864 Kreptul, 'The Constitutional Right of Secession in Political Theory and History' (n 853).
865 For more details on the principles of secession and existing secessionist movements, see Secession.Net
<www.secession.net.>accessed 14 June 2014.
866 C R Sunstein, Designing Democracy: What Constitutions Do (OUP, USA 2003) 102-104.
867 ibid.
868 Pre-commitment strategies refers to the ‘set of rights entrenched within a constitution designed to insulate minority groups from majoritarian politics’. See, ibid 96-101.
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exists, each subunit will be vulnerable to the threat of secession by the other'869, that would mean a disabling or disruption of the democratic process. Thus for a liberal democrat, the occurrence of multiple secession movements among subunits of a larger democratic State resulting from a constitutional secession right would spell political disaster. Therefore, Sunstein concluded that the best way to deal with secessionist demands is to rely primarily on the internal mechanism provided by constitutional democracy.870
In favour of constitutionalising the right of secession, many philosophers agree with Sunstein that a constitutional right to secession in democratic States should be avoided if at all possible because they believe that most Western-style democracies are already 'reasonably just'.871 For Rawlsians, ‘if most democratic States do a reasonably good job and guarantee minority rights
872 (distributive justice), as liberal democrats claim, then no moral reason exists to justify the secession of any groups of individuals from such a State.’873 Norman has defended Sunstein’s point of view about the pernicious effects of secessionist politics on democratic deliberation and political stability.874 Norman gave several arguments as to why liberal democrats should or should not consider inserting a right of secession into a democratic constitution. In his opinion, a constitutional secession right is meant to act as a procedural means of forcibly keeping secessionists within the prevailing territory of the democratic State.875 In the first place, assuming that secessionists are better off staying within the existing reasonably just democratic State, Norman suggested designing a secession procedure in such a way that it serves as a 'choking mechanism' for secession.876 Such mechanisms according to Kreptul included ‘enforcement of minority rights within a democratic State and the brutal suppression of minority or ethnic secessionist leaders in non-democratic States’.877 Notably, Norman’s
869 ibid 103.
870 Internal mechanisms provided by constitutional democracy: ‘Federalism checks and balances entrenchment of civil rights and civil liberties, and judicial review.’ See, ibid 112.
871 ibid.
872 Both Norman and Weinstock use the term ‘reasonably just’ to describe a well-functioning Western-style liberal democracy analogous to Allen Buchanan’s use of the term ‘perfectly just.’
873 Kreptul, 'The Constitutional Right of Secession in Political Theory and History' (n 853).
874 Norman writes: ‘The issue here is not whether secessionist politics is bad for democracy and justice, but rather, what can be done through the constitutional engineering of a multinational state to take away the incentives for minority leaders to engage in secessionist politics. See W Norman, “Domesticating Secession’, in Stephen Macedo and Allen Buchanan (ed), Secession and Self-Determination (NUP, New York 2003) 193-237.
875 Wayne Norman, 'Secession and (Constitutional) Democracy', in F Requejo (ed) Democracy and National Pluralism (London: Routledge 2001) 4.
876 Norman has in mind ‘vanity secession’, which he defines as ‘secessions by groups lacking just cause.’ ‘As an example of this, one could think of a group of relatively well-off citizens within a democratic state who no longer consent to being economically exploited (taxed heavily) and who vote to secede and form their own government’. ibid 6-7.
877 Kreptul, 'The Constitutional Right of Secession in Political Theory and History' (n 853).
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‘choking mechanism’ ‘would establish a high threshold supermajority requirement, most likely a two-thirds vote in a secession referendum’.878 Second, he argued that, constitutionalising a right of secession serves to ground an instrumental mechanism to minimise the chance of disruption and violence to the democratic process’. He recognised that, if there were no constitutional right of secession, a victory for secessionists in a referendum amounts to little more than the strengthening of the secessionists’ hand in a game of power politics’.879 In other words, the constitutional right to secession should be treated as an essential institutional response to breakaway possesses and as compatible with constitutionalism.880 In Norman’s opinion, ‘secessionists should not be given an advantage over the central government in claiming the legitimacy to secede in a situation in which there are no legal rules in place to govern secession’.881 Thus, he argued it is better to have constitutional rules in place for secession than to have no rules at all. In addition, Norman makes a third argument for constitutionally entrenching a clause it would be ‘evidence that the State is united by consent and not force’.882 Therefore, instead of concluding that a constitutional right of secession should be a right used by non-consenting minority groups to correct the injustice of non-consent, Norman ‘instead justifies the legal right to secede as a tool to strengthen the seceding group’s consent to the existing democratic State’.883 Weinstock on the other hand, tries to rebut Sunstein’s theory that such a constitutional right would have unfavourable consequences. He argued that in ‘the case of constitutionalisation, potential secessionists would be tempted to use the threat of secession as the strategic tool of their politics’.884 He reasoned for a legal right to secede, which is both moral and pragmatic.885 On the one hand, legalising secession in his opinion, would present secessionists with ‘a cold and lucid cost/benefit analyses of seceding versus remaining in the existing State, giving them the difficult legal obstacles they would have to clear before they could successfully secede.886 On the other hand, he based his ethical discussion on the
878 Norman, Secession and (Constitutional) Democracy (n 875) 4.
879 In Norman’s opinion ‘secessionists should not be given an advantage over the central government in claiming the legitimacy to secede in a situation in which there are no legal rules in place to govern secession.’
see, Norman, 'Domesticating Secession’ (n 874) 198.
880 Norman, 'Secession and (Constitutional) Democracy' (n 875) 5-6.
881 ibid.
882 ibid. In addition Norman argued that ‘Even in the democratic world, almost none of the existing national minorities ever gave their initial, democratic as-sent to their membership in the larger state; and few have had a formal opportunity to assent since. See Norman, 'Domesticating Secession’ (n 874) 193-237.
883 Kreptul, 'The Constitutional Right of Secession in Political Theory and History' (n 853).
884 D Weinstock, 'Constitutionalising the Right to Secede' (2001) 9 Journal of Political Philosophy 182.
885 D Weinstock, 'Toward a Proceduralist Theory of Secession' (2000) 13 Can J L & Jurisprudence 251.
886 ibid.
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argument that the 'participants to a constitutional contract are placed behind a national veil of ignorance.’887 Because they do not know which side, they will fall as a national group within a multinational State. So that, he argued, they would not make secession too easy, because they would be forgoing advantages of democratic cooperation. On the contrary, they would not want secession made too hard, because if they were actually discriminated against, they would not be able to legitimately leave the remaining State. So that, he suggested that, ‘a balanced right of constitutional secession would be desired, which would necessarily entail the imposition of procedural hurdles’.888 Thus, Weinstock argued ‘a carefully regulated right to secede actually removes some of the incentives which are presented to political actors in an unregulated State’.889
To conclude, it seems that liberal democrats are split on whether to constitutionalise a right of secession. Norman and Weinstock argued for legalising secession because it could serve to ruin the secession process itself. Whereas, Sunstein argued against a constitutional right of secession because he thinks that legalising a right of secession could be used to sabotage the democratic process. On the other hand, Norman like Buchanan holds that under certain circumstances and strict conditions it is both desirable and feasible to use constitutional principles to bring secession under the rule of law. However, Buchanan goes further to suggest that it may be important to supplement constitutional processes with international involvement. Accordingly, one must concede that, liberal democracy depends on the structure of the centralised State as the necessary means to carry out its values of egalitarianism and distributive justice. Hence, Kreptul argued that ‘constitutional democracy is the best method to guarantee the universal and equal human rights of individuals and groups, as well as a free entry for all in the arena of democratic politics’.890 Thus, no matter how liberal democrats drawback or argue the merit of constitutional secession, both arguments are derived from the same premise, protecting the territorial integrity of the democratic State. Accordingly, in light of these difficulties with the theory, the present author agrees with the approach taken by Buchanan and Norman when they insisted on having constitutional rules in place for secession and to supplement constitutional processes with international involvement.
887 ibid.
888 Weinstock suggested some of the procedural hurdles ‘include mandatory waiting periods between referenda and mandatory waiting periods between referendum calls and the actual vote, in order to prevent impulsive, public-opinion-driven secessions.’ See, ibid.
889 Weinstock, 'Constitutionalising the Right to Secede' (n 884).
890 Kreptul, 'The Constitutional Right of Secession in Political Theory and History' (n 853).
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Overall, constitutionalising rights of secession may serve as a strategy to prevent parties from issuing unjust blackmail. It may potentially overcome the problems that can lead to secession.
It may undermine democratic equality, especially in a society already characterised by inequalities of wealth and power. This right will eventually incentivise secessionist incitement on the part of nationalist entrepreneurs, which may undermine political stability and obstruct ordinary politics. However, the existence of a constitutional right of secession gives no guarantee that secession could be particularly achieved in a legitimate and peaceable way. Because, such secession provisions can always be designed and influenced by the central government, in such a way that the secession of a political unit with constitutional status, like a State or province, is made virtually impossible. On the other hand, the government can always choose to use force against secessionists, to prevent them from the withdrawal of the State.
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