For a Right of Unilateral Secession: Part Two

 by Jason Sorens

 

In my last post on this topic, I argued for a right of unilateral secession on the grounds that: 1) legalizing secession would reduce the risk of violence on net, and 2) codifying a plebiscitary, unilateral right to secede would reduce uncertainty without any compensating disadvantages. In this post, I consider some common objections in the literature to a liberal right to secede and show why they do not overturn the case for a legal right of unilateral secession to be accomplished through democratic plebiscite.

1. Rights-Violating Secessionists

Counting heads is probably not the best way to determine the relative legitimacies of governments. If a region gets 51% of the voters to approve secession, but then the 51% decide to persecute the 49% minority, then secession would cause a net loss in freedom or human rights. Under these conditions, secession should be restricted.



In the abstract, the case for restraining rights-violating secessions is plausible, but it is unworkable institutionally. A legal provision allowing the central government to veto secession if the secessionists are likely to violate rights would suffer from the “biased referee” problem. Central governments will be tempted to use the provision as an excuse to ban all secessions. Similarly, secessionists will always claim to be liberal if they are required to do so, but that does not mean practices will not change once they achieve independence.
Some scholars have argued that the potential for rights violations by secessionists justifies a higher threshold in the referendum on independence (say, 55% rather than 50%+1). There are two problems with this argument: 1) the correlation between secessionists’ likelihood of violating rights and ability to get widespread support in a referendum is probably weak, and 2) this suggestion assumes that secessionists are more likely to violate rights than governments. If governments are more likely to violate rights, then a higher threshold will tend to prevent more morally desirable secessions than the morally objectionable ones it prevents.
In cases such as the U.S. Civil War, in which the central government is sincerely persuaded that a particular secession would be morally disastrous despite, let’s assume, a constitutional provision permitting it, then the government may be morally justified in acting extraconstitutionally to prevent the secession.

2. Nationalist Objections

Nationalists hold that only well-defined national groups have a moral right to secede whenever the preponderance of the group desires it. Problematically, a crucial assumption behind nationalist theories is that there is some independent way to distinguish national identity from a collective demand for self-government, whatever the source of that demand may be. But empirical scholars of nationalism widely recognize that there are no “objective markers” of national identity. Scots are widely recognized to be a nation even though they are not necessarily linguistically, phenotypically, or religiously distinct from other British peoples, and were recognized as such even when they lacked any actual political autonomy. There is no other way to define a nation but as a group of people holding a shared aspiration for common, distinct political institutions, which is precisely what a secession referendum would reveal.
Could jurists or other political actors somehow claim that secessionists are not a “real” nation because they fail to meet certain criteria? Nationalist theories of secession must either rely on discredited, illiberal theories of nationality or break down into “choice” theories of secession.

3. Strategic Secession

This is a fairly abstruse issue; consult my paper for more details.

4. Plebiscitary Abjuration of the Right to Secede

Is it permissible for a region to abjure its right of secession by voting in a constitutional provision making secession difficult or impossible? Presumably a constitution could allow a region to do this, but it would not be wise to renounce a right permanently, and so it is unwise for constitutions to allow regions to do this.

5. Nonviability

Some scholars argue that enclaves and other “nonviable” territories should not be allowed to secede. This restriction seems paternalistic: shouldn’t it be up to the voters of a region whether they wish to take on the vulnerabilities associated with poor geography or demography? On the other hand, if a secession left both secessionists and the remainder state nonviable, that secession would presumably violate the Pareto optimality principle. Assuming the risk of violence due to secession’s proscription would be low in such a case, then there would be a good reason to proscribe secession. But very small states almost never have secessionist movements in the first place.
In any case, it is usually anti-secessionist central governments that create nonviable territorial units, precisely to prevent secession or indeed any decentralization of power. In practice, I shall argue, it is essential that administrative units be the subjects of any constitutional right to secede, but it is also important to follow sound principles for the territorial organization of the state. Viability is one such principle.

6. No Recursive Secession

Can secession for a region be prohibited if it denies its own minorities the right to secede? Denying a right of recursive secession is generally wrong, for the same, moral-prudential reasons that denying a right of secession in general is wrong. But does this wrong justify the central government’s banning secession to begin with? Any argument to this effect seems incoherent, because it simultaneously relies on the assumption that the rights of the many may be violated to safeguard the rights of the few (to justify the conclusion that secession may be prohibited for the larger region) and the assumption that the rights of the many trump the rights of the few (to justify the support for permitting recursive secession).
The problem of recursive secession can often be solved if the boundaries of territorial units are drawn appropriately. I discuss this issue in the next blog post in this series.

7. Undermining Democratic Deliberation

Allen Buchanan and Cass Sunstein have claimed that if exit (secession) becomes easy, then voice (public discussion in a democratic context) is no longer worthwhile. “Vanity secessions” undermine democratic dialogue and compromise.
However, there are no actual historical examples of vanity secession. As mentioned in the first post of this series, secessionism is rare among ethnic minorities territorially concentrated in a homeland. Most ethnic organizations choose to advance group interests using the “voice” strategy. In advanced democracies, secession is particularly difficult, because risk-averse voters tend to vote against independence even when they view the net benefits of sovereignty as positive.
A right to secede should make secessionism easier to organize, but it may well decrease the latent level of secessionist support in the population. The European Union allows member states a right of unilateral secession because member states would be highly unlikely to join without it. Within the context of a multinational state, a ban on secession should heighten minority nationalists’ insecurity, even if it suppresses some of the expression of that insecurity. Would you feel comfortable in a group that threatened you with violence should you ever decide to leave?
Finally, the right to exit can enhance the effectiveness of voice. The ability to secede may enhance democratic deliberation by requiring the majority to pay stricter attention to minority concerns. In any case, it is unclear at which point merely “ideological” differences, which Buchanan and Sunstein believe are invalid reasons for secession, become fundamental differences in civic philosophy that can sustain a “legitimate” civic-nationalist movement. For instance, Vermont secessionists‘ advocacy of small-scale republicanism and vivid denunciation of the United States government’s “imperial giantism” certainly seem to transcend everyday left-right disagreements.
In summary, none of these seven objections defeat the case for a right of secession, exercised through plebiscite, for regions of countries in which the prospect of secessionist violence is non-negligible. However, there are several important potential problems with implementing such a right in law that I have not yet considered. In my next post, I’ll justify my recommendations for how the right of secession should be codified, so as to satisfy the four sets of normative principles laid out in the last post.