In this three-part series of posts, I will be blogging my new SSRN working paper, “Designing a Constitutional Right of Secession: Applying Normative Principles and Empirical Findings.” The paper defends a right of unilateral secession for any country in which the possibility of secessionist violence is non-negligible, or where central governments are already unwilling to suppress secession militarily.
In this post, I will explain the basic argument in favor of a right of unilateral secession, that is, a justiciable right of a region to secede by plebiscite without a right of veto for other parts of the country or for the central government. I argue for a moral duty on a government to implement a constitutional or legal right to secede, not for a fundamental, abstract, moral right to secede. The difference is important because real-world politics often makes it impossible to satisfy everyone’s moral rights. The case presented in the paper is for legally recognizing a right to secede even when secession would violate some individuals’ rights. Moreover, the argument is about domestic legal guarantees for secession, not international institutions. It may be desirable for a government to recognize a unilateral right of secession even when it is undesirable for international institutions to intervene to enforce such a right.
In the next post, I will address arguments against a legal right of unilateral secession that fail. In the final post, I will explain how a right of unilateral secession should be qualified and structured in a country’s constitution.
To make the argument, I start with a set of normative assumptions and a set of empirical findings. The normative assumptions are intended to be general enough that they can be widely endorsed by people of widely differing moral and political perspectives, who nevertheless share some basic commitments. I then consider how different “secession regimes” — that is, legal approaches regulating secession — can satisfy these principles, bearing empirical findings in mind.
Here are the normative assumptions, ordered lexically so that higher principles take precedence over lower ones:
- Maximize physical integrity rights for all. The range of potentially permissible secession regimes is limited to those that can plausibly satisfy this principle. Physical integrity rights include individual rights against extrajudicial killing and physical assault, torture, and illegal detention.
- Maximize other basic liberties for all. Among those regimes that can satisfy the first principle, only those that also satisfy the second principle are potentially permissible. Political philosophers disagree on what counts as “basic liberties” that any minimally just regime must satisfy. At the very least, these liberties include wide guarantees for freedom of speech, thought, conscience, association, and equality before the law. John Rawls (1999, pp. 197-9) argues that the “fair value of equal political liberty,” a right to security of personal property, and the right to free choice of an occupation or profession count as fundamental liberties. “Free-market fairness” advocate John Tomasi (2012) also includes the right to security of productive property and the right to own a business. And so on. To the extent that there is disagreement about what counts as a basic liberty, there may be disagreement about the range of potentially permissible secession regimes.
- Follow the principle of Pareto optimality. For any two regimes A and B and any two sets of citizens X and Y, if the consequences of the two regimes are such that X prefer one regime to the other, while Y are at least indifferent between the two regimes, then select the regime that X prefer. This principle rules out secession regimes that make some people worse off without making anyone better off, relative to some alternative regime.
- Satisfy all other moral principles. Differing moral foundations yield different moral principles. I avoid making claims about moral foundations, but these foundational views may yield further principles limiting the range of permissible secession regimes. Differing views on the nature and importance of distributive justice and economic growth can justify marginally different views on the appropriate secession regime.
I consider the principle of “no forced association” under this last heading. Libertarians, for example, often claim that governments may rule only with the literal consent of each individual under their rule. (Nozick famously disagrees.) Real-world politics always requires some individuals to be coerced. Prohibiting secession coerces some people into supporting a government to which they do not consent. But allowing secession also allows secessionists to coerce the anti-secessionists in their midst. It may be ideal for governments to rule only on the basis of unanimous consent — a question outside the scope of this paper — but in practice, they do coerce nonconsenters. So we have to figure out legal rules for secession in the world as it exists. I argue that the consent principle yields only a weak presumption in favor of allowing secession whenever a majority in the seceding region votes for it. Presumably allowing secession under such conditions will reduce the number of nonconsenters. But it won’t necessarily minimize the number of non-consenters or the number and severity of rights violations, as we shall see.
The generalizable empirical findings about secessionism are as follows:
- Secessionism is rare. In all the high-income democracies of Europe, North America, and the Pacific Rim, there is only one region in which parties clearly favoring short-run independence have won an absolute majority of votes in any recent election: Scotland. Furthermore, in Scotland many voters voted for the Scottish National Party (SNP) without favoring independence, and support for independence has been below 50% in all polls since that election. In the paper, I also present evidence that in India, no Indian state has anywhere close to a majority for independence, even Jammu and Kashmir. Since India is one of the countries in the world with the most secessionist movements, there are very few regions around the world that would actually vote by a majority for independence if they were given the chance.
- Secessionism may be “contagious” within a country, but not across borders (except when there are ethnic ties). Successful secessions in a world region do not correlate with subsequent secession attempts in the same world region. The number of secessionist movements in a neighboring state does not correlate with the prevalence of secessionism in a given state.
- Only groups that expect to benefit politically and economically from independence support secessionist movements at all. Secessionism appears to be an instrumentally rational response to social conditions. It doesn’t arise from “primordial ethnic hatreds.”
- Still, secessionism is strongly associated with violent conflict. The reason is that governments almost never concede independence, and have trouble committing to respect any compromise on federalism or regional autonomy. Central governments tend to overwhelm regional governments in the long run, especially in developing countries.
- Conceding a legal path to independence essentially eliminates the link between secessionism and violence. This is one of the central findings of my book, and it doesn’t seem to be a rich-democracy syndrome. Even within the developed West, governments that have conceded some kind of legal mechanism for secession (Canada, Denmark, the UK with respect to Scotland and Wales [N.I. recognized right to join Ireland since 1997], Belgium, the US with respect to Puerto Rico, St. Kitts and Nevis) have seen far less secessionist violence than those that have not (Spain, Portugal, Italy, France, Finland), even though they have equally strong secessionist movements. Moreover, governments that have conceded a right to self-determination of some kind have seen separatist violence fall after that decision (e.g., Puerto Rico after 1954, Northern Ireland after 1997). Now, a legal path to independence is quite different from a right of unilateral secession. To my knowledge, St. Kitts and Nevis is the only country in the world to allow a constitutionally codified, unilateral right of secession. The Canadian government, for instance, maintains that it could veto Quebec’s secession, but probably wouldn’t if the referendum met its standards.
- Central governments recognizing a legal route to independence have been more likely to decentralize power to regional minorities and have never, in the post-World War 2 era, recentralized power away from them.
The argument for a right of unilateral secession proceeds in two steps. The first step is to note that since a legal path to independence reduces violent conflict, which predictably raises the risk of physical integrity rights violations, then per normative assumption #1, governments have a duty to allow a legal path to independence whenever the risk of secessionist violence is non-negligible. To do otherwise would be to fail to maximize physical integrity rights respect.
There appear to be no counterbalancing downsides to providing such a path. A successful secession in one place does not appear to cause secession attempts (and possible violence) elsewhere. Moreover, a world of smaller countries might have more interstate conflict, but less civil conflict, since larger countries are at significantly higher risk of civil conflict. Civil wars have killed eight times more people than interstate wars since 1945, so on net, a world of somewhat smaller, more numerous states would probably be more peaceful. However, since secessionism is rare and usually unpopular even where it exists, a legal right to secede would not dramatically increase the number of states in the world, at least in the short run.
The next step is to argue that a legally codified right of unilateral secession is superior to a vague legalization of secession. First, legal codification reduces the political and economic uncertainty attendant upon secessionist challenges. That uncertainty creates deadweight loss, violating the principle of Pareto optimality. Second, making secession rights unilateral is important if a legal path to independence is to have any teeth.
On this latter point, consider a non-unilateral legal path to independence under two scenarios. The first scenario is a central government that retains a veto right but is unlikely to exercise it. The second scenario is a central government that retains a veto right but is likely to exercise it. Under the first scenario, the central government’s veto right benefits no one. It is of little or no value to the central government, and merely creates some uncertainty (what kind of crisis might happen if the central government unexpectedly does use its veto right?). Under the second scenario, the legal path to independence is in name only, because secessionists expect the central government to forbid their secession in the end. Therefore, the incentives for secessionists to use peaceful means do not obtain, and there is an unacceptable risk of violent conflict. Either way, a right of unilateral secession morally dominates a situation in which the central government makes secession negotiable but retains an ultimate veto right.
Therefore, the default position we are left with is that, if secession is to be permitted, it should be permitted on the basis of at least a majority vote among the potentially seceding group in a referendum. By requiring a majority vote in a referendum, the government requires a secessionist movement to make a persuasive case through democratic discourse. Secessionists will have no justification for pursuing violence, and governments will have more incentive to compromise with secessionists through mutually agreed autonomy arrangements. The majority requirement also ensures that secession, whenever it occurs, will improve freedom of association for more people.
This default position might require qualification. Are there some circumstances under which a unilateral, plebiscitary right to secede would tend to violate Pareto optimality or some other principle of justice? Moreover, nothing has been said yet about how exactly such a right should be designed. What should the threshold for a successful referendum be, for instance? The next post will discuss unpersuasive objections to the unilateral, plebiscitary right of secession, and the following post will discuss valid qualifications to the right.