Politics

The Right Of Secession In Europe And Around The World

The right of secession is a highly disputed topic in international and constitutional law. Proponents and opposers of the right to secede have, over the years, presented a plethora of different arguments for and against, and the debate is ongoing to this day. The European Union and its Member States are not immune from the discussion, with Catalonia and Brexit serving as two prominent, if radically different examples of attempted divorce.

In this article, we will look at the status of secession in international law, look at countries that grant the right to secede, and examine Article 50 of the Treaty of the European Union as an example of a formalised procedure for separation.

Right of Secession in International Law

Secession is a delicate subject, since it deals with fundamental aspects of present-day politics, above all the right to self-determination, and the sovereignty and unity of the state.
In recent years, international law has normally favoured the latter rather than the former, in the name of sustaining the stability of the international system. There has however been one exception: the right of self-determination of colonial people and states.
In addition to this, there is at least some support for the right to secede as a reaction to ethnic cleansing and genocide, with Kosovo being the most well-known example.

UN General Assembly Right of Secession
The General Assembly of the United Nations saw many new members at the beginning of the 1990s

Nonetheless, this did not prevent secessions or secessionist attempts all over the world. A new, great wave of secessions occurred with the fall of the Soviet Union: fifteen new states emerged from the collapse of the USSR. Seven more came into existence with the fall of Yugoslavia. Czechoslovakia ceased to exist and gave birth to two different states. In the third world, South Sudan represents one of the newest sovereign states. Just one year ago, the whole world witnessed the secessionist attempt in Catalonia and the subsequent crackdown by Spanish authorities.

Historically and in academia, federalism and secession have been considered as antithetical cases, since federalism has the purpose of preserving unity between different constituent units (Stepan, 2005). In this light, secession is portrayed as a failure of federalism, especially when the parent state is a federation, a former federation or a regionalised, decentralised state, and the new state is a former constituent unit (Sanjaume I Calvet, 2018).

A Constitutional Right of Secession?

Currently, among the constitutional laws of the world, only two states carry the right of secession in their constitution: Ethiopia, and the Federation of Saint Kitts and Nevis. In the Ethiopian case, each constituent unit can, through a specific process described in Article 39, demand their secession from the federation. In the case of Saint Kitts and Nevis, a micro-federation composed of two islands, only Nevis has the right of secession.

The constitution describes the procedure that Nevis has to undergo in order to achieve independence. More specifically, secession can only be achieved through a referendum, provided that the separatist cause receives a supermajority of 2/3 of the voters. The theory was tested in practice in 1998, with the holding of an independence referendum in the island of Nevis. The referendum was invalidated: the votes in favour of independence reaching almost 62%, a whopping number which nonetheless fell short of the supermajority rule.

Saint Kitts and Nevis, Right of Secession
Administrative division of the Federation of Saint Kitts and Nevis

The enshrining of a right of secession in a federal constitution typically provides for the possibility of an orderly separation. It also protects those citizens who could be specifically harmed by the process, and ensures that secession is only a last resort scenario. This means that not only there is a parliamentary procedure to follow, but referenda also must meet a supermajority, as in the case of Nevis. Among former states, the Soviet constitution of 1936 also included the right of secession, although this remained a dead letter, like the vast majority of the document.

Secession Without Constitutional Guarantees

In a Bodinian vision of the state, sovereignty is considered impossible to split or divide, and therefore, subnational units cannot secede. In this view, the presence of a right of secession, or withdrawal as in the case of the EU, indicates that the political entity is not a state, but a non-state (i.e. a confederation or an international organisation).

The Bodinian view is rooted in the idea that the preservation of unity is one of the fundamental purposes of the state in the first place. However, it makes exceptions in cases where secession can solve conflicts, when other political solutions based on territorial autonomy and power-sharing fail.
This view is questionable and has attracted considerable criticism. Even on an empirical level, while many federal constitutions do not mention a right of secession and a related procedure, there remain other avenues to achieve separation.

Quebec and Canada represent a specific case. Voters in Quebec rejected independence twice, once in 1980 and again in 1995 with a lower margin. In both cases, the independence vote was called, in spite of the lack of a secession clause in the Canadian constitution. In 1998, the Supreme Court of Canada ruled that unilateral secession was not legal, but, in case of a referendum agreed by all parties, the rest of Canada had no right to forbid secession. In other words, the ruling established secession as a political, rather than strictly legal decision. The Clarity Act in 2000 settled the procedure regulating secessions of their provinces.

Scotland, Right of Secession
Results of Scotland’s 2014 independence referendum

A very similar case is that of Scotland in 2014. Since the UK has constitutional customs and procedures, but not a constitution, the Scottish and British government reached a political deal in 2012, known as the Edinburgh agreement, clearing the way for a Scottish independence referendum. The referendum eventually failed in 2014.

As we have seen, the lack of specific constitutional provisions for secession, does not mean that secessions are automatically forbidden. This is true of other political entities: some lawyers argue that, if one of the cantons were to try and secede from Switzerland, a constitutional amendment might just be discussed and passed with the constitutional procedure, to allow the canton to secede. In the United States, a landmark case, Texas v White, ruled on by the supreme court in 1869, declared unilateral secessions illegal. Secessions are allowed only in case of revolution or consent of all parts.

Article 50: Withdrawal or Secession?

Separations are, to some extent, a form of secession. A key difference is that secession implies an asymmetry between the seceding unit and the parent state, while separation implies a form of symmetry between the two separating units. This was the case with Czecoslovakia: the two constituent republics agreed to split, resulting in the extinction of the former country and the emergence of two new entities.

The fact that the European Union has a right of secession, or withdrawal, is one of the main features that defines the EU as a polity other than a state, independent of its taxonomy. The economic and stability arguments might not play in favour of secessions or withdrawals, like in the case of Brexit, but the fact that the option can be unilaterally triggered or revoked is now out of the question, and it’s unlikely that any attempt at restricting this ability in the future would prove productive. The EU is, therefore, likely to keep Article 50 in place even in the event of further integration and outright federalisation.

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Francesco Violi

Federalist activist and PhD student in Politics and International Relations. Author for My Country? Europe and other federalist/pro-European platforms.

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