Donnachaidh
January 30th, 2008, 02:14 PM
ALEKSANDAR PAVKOVIć
How can one justify the secession of a territory from a liberal-democratic state of the kind currently prevalent in North America and Western Europe? The question does not primarily concern a mutually agreed secession, such as that of Norway from the United Kingdoms of Norway and Sweden in 1905. If the government and legislature of the ‘parent state’[1] freely agree to a secession of a part of its territory, this provides at least a prima facie, albeit not necessarily the only, justification for the secession.
The question to be addressed in this paper is whether a unilateral secession could be justified in cases in which the parent state is a functioning liberal democratic state; such a state, by definition, grants equal political, civil and cultural rights to all of its citizens and thus endeavours to avoid or remove any form of discrimination, let alone oppression, among them. A unilateral secession from a liberal democratic state results in a change of its political and constitutional order, which breaches the existing constitutional procedure and to which a majority of the citizens of the parent state would object: because of its unconstitutional nature and because they believe, rightly, that this change will harm some of their interests. A minority of the citizens of the territory which is to secede may also oppose this secession because the new secessionist state, in their opinion, could be likely to deny them some of the rights they enjoy as citizens of the parent state. In this context, our initial question can be stated as follows:
Can a change to a constitutional order of a liberal democratic state which is not, at least prima facie, compatible with the principles of majority decision-making and equal protection of rights, be justified within a liberal-democratic political theory?[2]
The question does not presuppose that a unilateral secession from a liberal-democratic state is, within a liberal theory, prima facie unjustifiable. It suggests only that, in view of the fact that unilateral secession breaches the principles of majority decision making and of equal protection of rights, it needs justification.[3]
In Part I of the paper, I examine several theories of secession which ascribe a general right of (unilateral) secession to certain groups - irrespective of whether or not their members are citizens of a liberal democratic state. In consequence, in spite of the significant differences among them, all the theories to be examined in Part I maintain that certain groups or individuals have a right to unilaterally secede ‘their’ territory from a functioning liberal democratic state. As we shall see, each of these theories offers a different account of the grounds on which the general right of secession is to be ascribed to groups and individuals, and of the conditions under which the right should be exercised. Yet all of the theories, whether implicitly or explicitly, maintain that the general right of secession, under the conditions they specify, overrides the principle of majoritarian decision-making as well as the interests and rights of the majority of citizens in the parent state (including those who inhabit the secessionist territory but oppose the secession). In examining these theories - which I shall call 'the general right of secession theories' - I aim to find out how they justify a positive answer to our question.
In Part II, I suggest an alternative account of justification of secession which does not postulate or advocate a general right of secession. Instead of a general right of secession, I outline, through a series of imaginary scenarios, several conditions which jointly may justify at least one type of unilateral secession from a liberal-democratic state. According to this account, a secession, whether mutually agreed or unilateral, should not infringe the citizens’ rights which the liberal-democratic parent state is endeavouring to protect. The conditions for secession aim to ensure that the rights both of the secessionists and of the citizens of the parent state continue to be equally protected in spite of the secession. On such an account, under some circumstances, a unilateral secession would also be justified as a means of protecting the secessionists’ liberties or rights. Accordingly, I shall call it a 'protection' account of secession.
http://www.austlii.edu.au/au/journals/MqLJ/2003/5.html
How can one justify the secession of a territory from a liberal-democratic state of the kind currently prevalent in North America and Western Europe? The question does not primarily concern a mutually agreed secession, such as that of Norway from the United Kingdoms of Norway and Sweden in 1905. If the government and legislature of the ‘parent state’[1] freely agree to a secession of a part of its territory, this provides at least a prima facie, albeit not necessarily the only, justification for the secession.
The question to be addressed in this paper is whether a unilateral secession could be justified in cases in which the parent state is a functioning liberal democratic state; such a state, by definition, grants equal political, civil and cultural rights to all of its citizens and thus endeavours to avoid or remove any form of discrimination, let alone oppression, among them. A unilateral secession from a liberal democratic state results in a change of its political and constitutional order, which breaches the existing constitutional procedure and to which a majority of the citizens of the parent state would object: because of its unconstitutional nature and because they believe, rightly, that this change will harm some of their interests. A minority of the citizens of the territory which is to secede may also oppose this secession because the new secessionist state, in their opinion, could be likely to deny them some of the rights they enjoy as citizens of the parent state. In this context, our initial question can be stated as follows:
Can a change to a constitutional order of a liberal democratic state which is not, at least prima facie, compatible with the principles of majority decision-making and equal protection of rights, be justified within a liberal-democratic political theory?[2]
The question does not presuppose that a unilateral secession from a liberal-democratic state is, within a liberal theory, prima facie unjustifiable. It suggests only that, in view of the fact that unilateral secession breaches the principles of majority decision making and of equal protection of rights, it needs justification.[3]
In Part I of the paper, I examine several theories of secession which ascribe a general right of (unilateral) secession to certain groups - irrespective of whether or not their members are citizens of a liberal democratic state. In consequence, in spite of the significant differences among them, all the theories to be examined in Part I maintain that certain groups or individuals have a right to unilaterally secede ‘their’ territory from a functioning liberal democratic state. As we shall see, each of these theories offers a different account of the grounds on which the general right of secession is to be ascribed to groups and individuals, and of the conditions under which the right should be exercised. Yet all of the theories, whether implicitly or explicitly, maintain that the general right of secession, under the conditions they specify, overrides the principle of majoritarian decision-making as well as the interests and rights of the majority of citizens in the parent state (including those who inhabit the secessionist territory but oppose the secession). In examining these theories - which I shall call 'the general right of secession theories' - I aim to find out how they justify a positive answer to our question.
In Part II, I suggest an alternative account of justification of secession which does not postulate or advocate a general right of secession. Instead of a general right of secession, I outline, through a series of imaginary scenarios, several conditions which jointly may justify at least one type of unilateral secession from a liberal-democratic state. According to this account, a secession, whether mutually agreed or unilateral, should not infringe the citizens’ rights which the liberal-democratic parent state is endeavouring to protect. The conditions for secession aim to ensure that the rights both of the secessionists and of the citizens of the parent state continue to be equally protected in spite of the secession. On such an account, under some circumstances, a unilateral secession would also be justified as a means of protecting the secessionists’ liberties or rights. Accordingly, I shall call it a 'protection' account of secession.
http://www.austlii.edu.au/au/journals/MqLJ/2003/5.html