Abstract
This chapter argues that internal self-determination is more constrained by the principles of constitutionalism and federalism than external self-determination through secession. Internal self-determination through institutional disobedience is, therefore, hardly legitimate, as long as the parent State is a liberal democracy. If internal secession is the creation of a new State that does not secede from its federation but only from the federated unit of which it formed part, this type of secession is, like internal self-determination, more bound by the principles of constitutionalism and federalism than external secession.
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Notes
- 1.
See § 2.3.
- 2.
In the hypothetical multinational contract, the principle of federalism would, to some extent, be included in the Principle of constitutionality since the constitutional pact would include the federal agreement.
- 3.
Ruiz Soroa, J.M. “El derecho a decidir como idea borrosa”, El País, 29 October 2012.
- 4.
Among others, Sunstein, C.R. “Constitutionalism and Secession”, p. 649. Sunstein, C.R. Designing Democracy, p. 103. Buchanan, A. Secession, p. 7. Norman, W. Negotiating Nationalism, p. 171. Norman, W. “From quid pro quo to modus vivendi…”, pp. 186, 192. Critics of the analogy between secession and divorce: Aronovitch, H. “Why Secession Is Unlike Divorce”, pp. 27–37. Miller, D. Citizenship and National Identity, p. 116.
- 5.
Norman, W. Negotiating Nationalism, pp. 170–1. Norman, W. “From quid pro quo to modus vivendi…”, p. 186.
- 6.
Legal orders often require marital separation for a certain period before permitting unilateral divorce. Even if many liberal democracies still maintain a formal obligation to allege causes labelled as “irretrievable breakdown of marriage”, most of them require no unjust grievance suffered by one of the spouses. See Örücü, E.; Mair, J. Juxtaposing Legal Systems… on Divorce and Maintenance.
- 7.
See Norman, W. Negotiating Nationalism, p. 171.
- 8.
Buchanan, A. Secession, p. 7.
- 9.
In particular, secessiontaxation can work as a kind of alimony in favour of the spouse prejudiced or adversely affected by the separation. See § 3.4.
- 10.
Rawls, J. A Theory of Justice, ch. VI. In similar vein, “civil disobedience is one thing, revolutionary activity quite another, and the difference between them is told not only by their manner but also by their objectives”. Bickel, A.M. The Morality of Consent, p. 118.
- 11.
Baquero Cruz, J. “An Area of Darkness”, in Walker, N.; Shaw, J.; Tierney, S. (ed.) Europe’s Constitutional Mosaic, pp. 65–71.
- 12.
See § 14.1.
- 13.
- 14.
Rawls, J. A Theory of Justice, pp. 326–7.
- 15.
Bickel, A.M. The Morality of Consent, p. 119.
- 16.
Some may, however, argue several caveats: (1) pouvoirs constitués in a constitutional State continuously strive to impose their interpretation of the Constitution; (2) the intrinsic link between independence referendum and UDI recommends not reaching very different conclusions between the two options; (3) if the parent State repeatedly refuses to agree, negotiate or authorize a referendum on secession, calling the consultation unilaterally may be legitimized by the principle of democracy.
- 17.
See ch. 1.
- 18.
See § 13.1.
- 19.
See Gilliland, A. “Secession Within Federations…”, pp. 39–49.
- 20.
See Preamble and Articles 1, 3, 150 of the Swiss Federal Constitution of 1999. Thalmann, U. in Argullol, E.; Velasco, C. (dir.) Institutions and Powers in Decentralized Countries, §§ I (5–6) and III (1).
- 21.
See Maggetti-Waser, M.; Fang-Bär, A. “The Birth of a New Canton”, in Belser, E.M.; et al. (ed.) States Falling Apart? pp. 347–52. Bilbao Ubillos, J.M. “El proceso de gestación de un nuevo canton…”, pp. 299–303. Monahan, P.J.; Bryant, M.J. Coming to Terms…, pp. 16–17.
- 22.
Matas, J.; et al. The Internal Enlargement…, p. 45: “It is possible to wonder what would have happened if the federal referendum had rejected the incorporation of the Jura. What is clear, however, is that after the constitution of the new canton, the Jurassians continued to be Swiss and the Jura remained in Switzerland, a victory for the no in the federal referendum of 1978 would have forced the procedure of secession of the Jura from Switzerland to begin, which would not have been automatic, or the constitutional reform to be reformulated and therefore the way in which the Jura fitted into the Confederation.”
- 23.
See Articles 5 and 6 of the Swiss Federal Constitution of 1874.
- 24.
See Article 53 of the Swiss Federal Constitution of 1999.
- 25.
See Maggetti-Waser, M.; Fang-Bär, A. “The Birth of a New Canton”, in Belser, E.M.; et al. (ed.) States Falling Apart? pp. 354–62. Medina, M. El derecho de secesión…, p. 193.
- 26.
See § 2.5.
- 27.
See Bossacoma, P. Secesión e integración, § 10. Requejo, F.; Nagel, K.J. “Democracy and Borders”, in Jordana, J.; et al. (ed.) Changing Borders in Europe, pp. 146–62.
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Bossacoma Busquets, P. (2020). Internal Self-Determination. In: Morality and Legality of Secession. Federalism and Internal Conflicts. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-26589-2_13
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