A Theory of Self-Determination

A Theory of Self-Determination Presented by: Mr. Bossacoma Date: 13 April 2022 Why this book? - Demands for self-determination have not disappeared with globalization, democratization and liberalization. - The debate on morality and legality of secession is important in the UK and Spain, and in Europe and world-wide. - There is less theory on the demos (people) than on the cracy (power). This is and should keep changing. A theory of secession for liberal-democratic contexts is necessary. - As many democracies have proven capable of establishing cracies from reflection and choices, the formation of the demos should no longer depend on accident and force but on reason and vote. Concept of secession - "Separation of part of the territory and population of a State with attributes of sovereignty in order to create another State with similar attributes of sovereignty" - Included in this concept: external and internal, unilateral and consensual, peaceful and violent secession. - Not included in it: redemption, dissolution, expulsion (neither secession of the majority nor of the center). A contract theory of secession - For (too) long, contract theories which have inspired and guided constitutionalism have forgotten to address the personal and territorial ambit in which this social contract should be set. - The book proposes a hypothetical multinational contract of Rawlsian inspiration, compatible in parallel with: • The contract between persons (A Theory of Justice) and • The contract between peoples (The Law of Peoples) Why a contract theory grounded on national self-determination? - States are not nationally neuter but often nationalizing - The national community normally works as a framework for our autonomy as individuals - Being a member of a nation can lend greater significance to our individual acts, for they can constitute collective successes or failures - National diversity is one of the richest sources of cultural diversity in the world - Nations produce and enhance important values such as loyalty, fraternity and solidarity - National identity is a significant part of the identity of individuals and failure to respect it could affect individuals' welfare The hypothetical multinational contract - This contract sets out the basic principles of the multinational state and the basis of what I call Justice as multinational fairness. - This method is based on Rawlsian pure procedural justice and influenced by my grandmother's teachings: - "One cuts, the other chooses" • 1. The original position is defined in such a way that it is a status quo in which any agreements reached are fair. It is a state of affairs in which the contracting nations are equally represented and the outcome is not conditioned by arbitrary contingencies or the relative balance of social forces. Thus, the original position is an ideal context in which the hypothetical contract among nations is signed to create the multinational State. • 2. The veil of ignorance would guarantee the fairness of the contract since behind it the contracting nations would not know their own political, military, demographic, economic and cultural weight. The two articles of the hypothetical multinational contract - 1. Every nation which forms part of a multinational State shall act in accordance with the constitutional pact insofar as: • (1) Non-discriminatory treatment of members of the national minorities is guaranteed. • 2) Equal opportunities for the members of national minorities and equal recognition of those minorities are promoted. • (3) Multinational solidarity is established. Multinational solidarity shall be arranged in ways compatible with national solidarity and shall not be discriminatory towards national minorities. • - (4) A reasonable minimum of internal national self-determination is permitted. A minority nation which forms part of a multinational State may secede unilaterally if all the following requisites concur: • (1) Unilateral secession shall be the result of a democratic process within the minority nation with clear majorities and extensive, intense and reasonable deliberation. • (2) Agreed ways shall be sought under the obligation of principled negotiation. • (3) The claim for secession shall be consistent with liberal nationalism. • (4) Respect for human rights and protection of minority rights shall be guaranteed during the secession process, during the constituent process and once the powers of the new State have been constituted. • (5) The minority nation shall be concentrated in a specific territory located on the confines of the multinational State. • (6) As a result of secession, both the newborn State and the parent State shall become territorial units objectively capable of providing sufficient public authority to exercise effective and independent sovereignty over their territory and to survive in a global context. The wealth of the parent State shall not be substantially altered. If the parent State has no duty to bear the costs and damages caused by the secession, these shall be repaired, compensated for or subsidized by the new State. If reparation, compensation or subsidization are not possible, it may be fair to impede secession. • (7) As a result of secession, no serious damages shall be caused to third parties which have no reasonable duty to bear them. If the third parties have no duty to bear such damages to their legitimate interests, the damages shall be repaired or compensated for. If reparation or compensation are not possible, it may be fair to impede secession. Article 1: Multinational principles - (1) Principle of non-discrimination - (2) Principle of equal opportunities and equal recognition - (3) Principle of multinational solidarity - (4) Principle of internal self-determination Article 2: Secession principles - (1) Principle of democracy - (2) Principle of agreement and negotiation - (3) Principle of need for liberal nationalism - (4) Principle of respect for human rights and protection of minorities - (5) Principle of territoriality - (6) Principle of viability and compensation - (7) Principle of avoiding serious damage to third parties Theories of secession - 1. Remedial theories: the right to secede as a remedy against injustices. - 2. Primary theories: the right to secede as not necessarily remedial. • 2.1. Ascriptive or national theories: this right is assigned to special groups such as national communities or federated units. • 2.2. Elective or choice theories: this right is granted to any territorially concentrated group of people. Towards a more gradual and eclectic theory - 1. Objections to remedialism: • Theoretical: injustices should not determine the existence of a right to secede (and the value of self-determination), but the conditions and requirements to exercise it. • - Practical: perverse incentives in magnifying and provoking mistreatment. 2. Objections to pragmatisms (especially elitism): • Theoretical: conception of consent from private law and from libertarian politics. • Practical: too permissive, too much instability. Justice as Multinational Fairness - Under this contract theory, injustices do not determine the existence of a right to secede, but the requirements to exercise it. - The more just the State treatment of minority nations is, the more qualified the right to exit ought to be. - Making secession difficult rather than impossible. - Justice, as well as legitimacy, is a matter of degree. - JMF as a more eclectic, complex and gradual approach, which tries to integrate ideal and non- ideal theory. Complementary causes - The requisites for secession can, and should, adapt to nonideal situations: • If the parent State has perpetrated or is perpetrating an injustice against the seceding territory, such as military occupation, selective violation of human rights or economic exploitation, secession requisites would evaporate or diminish, favoring the recovery of statehood or the exercise of secession. • Conversely, if the seceding nation or its nationalism were manifestly illiberal compared to the parent State, the right to external self-determination would be reduced to a mere right to internal self-determination. Legality of secession - International law has, and will likely maintain, a remedial logic. - Constitutional law of liberal democracies should adopt a qualified primary right with the aims of promoting: • Recognition and accommodation of national pluralism • Respect for the status and powers of minority nations • Cooperation and compromise between majority and minority nations • Multinational federalism, integration and stability • New forms of shared sovereignty and constituent power • Negotiated and consensual secession International law - States are the principal lawmakers and many of them are neither liberal nor democratic. - The principle of self-determination, as the "need to pay regard to the freely expressed will of peoples" (ICJ), doesn't include a right to external self-determination (secession) of minority nations such as Scotland, Catalonia or Quebec (SCC). - International law is more inclined to accept and advance a remedial right approach to secession. - The violation or non-recognition of internal self- determination may justify external self-determination. International liberty, effectivity and recognition - The absence of an international right to secede does not forbid unilateral secession • - ICJ Advisory Opinion of 22 July 2010 (par. 79) Traditional doctrine: ex factis jus oritur. • "A state comes into existence when a group of individuals living on a definite territory are organized under an effective and independent government" (Kelsen) - Importance of international recognition • Creation of new states depends on the judgement of existing states and international organizations (increasing regionalization). • The book defends (the progression of) a constitutive, collective and principled recognition. Constitutional law and theory - In general, contemporary constitutions do not recognize any right to secede. - Notwithstanding… • Several historical and current constitutional acts recognize a right to secede or to (external) self- determination. • Even if such rights are not enshrined in the constitution, the book explores doctrines, interpretations and instruments to respond in legal, democratic and negotiated ways to secession claims. Institutionalizing secession - Ideally, a secession claim should be clearly expressed both via representatives and via referendum. - If the central authorities have recurrently refused to allow a referendum, the secession process may move forward (only) with the democratic legitimacy of the elected representatives. - The objectives in the wording of a referendum question ought to be intelligibility, conciseness, simplicity, vernacularity, straightforwardness, neutrality, and legal correctness. - Regarding the clarity of the majority, several techniques for ensuring a qualified majority in favor of secession are analyzed. Domesticating secession - - Domestication through institutionalization: • More political: UK • More judicial: Canada Constitutionalizing a qualified right to secede as a special type of constitutional amending procedure. - A qualified constitutional right to exit could grant voice to minority nations as well as ensure loyalty to the multinational union. Constitutional barriers to secession - Express eternity clause - Implicit eternity clause - Constitutional revision to secede - Constitutional revision to hold a referendum - Legal requisites to hold a referendum - Qualified constitutional right to secede - Legislative requisites to secede Constitutionalizing unilateral secession - The last chapter presents a constitutional theory on unilateral secession based on the awakening of a new constituent people for cases where there is no constitutional option to secede (inspired by Bruce Ackerman's We the People). - Given the revolutionary nature of unilateral secession, in liberal-democratic contexts only after a long path seeking negotiated and constitutional ways will unilateral democratic avenues, backed up by extensive, intense and sustained popular mobilization, be able to legitimately overcome the constitutional barriers and raise the seceding nation as a constituent people. - In liberal-democratic settings, unilateral secession is and must be a difficult target. Back to the beginning - In the Federalist Papers, Hamilton wondered "whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force". - While many democracies have proven to be capable of establishing cracies from reflection and choice, the establishing of the demos still depends too much on accident and force and too little on reason, deliberation and vote.