Morality and Legality of Secession

This book explores secession from three normative disciplines: political philosophy, international law and constitutional law. The author first develops a moral theory of secession based on a hypothetical multinational contract. Under this contract theory, injustices do not determine the existence of a right to secede, but the requirements to exercise it. The book's second part then argues that international law is more inclined to accept and advance a remedial right approach to secession. Therefore, justice as multinational fairness is to be fully institutionalized under the constitutional law of liberal democracies. The final part proposes constitutionalizing a qualified right to secede with the aim of fostering recognition and accommodation of national pluralism as well as cooperation and compromise between majority and minority nations.

Pau Bossacoma Busquets is Lecturer in Public Law at Pompeu Fabra University, Spain, and legal advisor of the Catalan Government. He is a member of the UPF Political Theory Research Group, the Evolution of Institutions Observatory and the Edinburgh Centre for Constitutional Law. He has authored several academic books, chapters and papers on constitutionalism, democracy, citizenship, nationalism, self-determination, sovereignty and territorial autonomy.

Auteur

Pau Bossacoma Busquets is Lecturer in Public Law at Pompeu Fabra University, Spain, and legal advisor of the Catalan Government. He is a member of the UPF Political Theory Research Group, the Evolution of Institutions Observatory and the Edinburgh Centre for Constitutional Law. He has authored several academic books, chapters and papers on constitutionalism, democracy, citizenship, nationalism, self-determination, sovereignty and territorial autonomy.

Contenu

1. SECESSION IN POLITICAL PHILOSOPHY

1.1. The concept of secession

1.2. A contract theory of secession

1.2.1. Contractualism and boundaries

1.2.2. A hypothetical multinational contract

1.2.3. Articles and principles of a hypothetical multinational contract

1.2.4. The multinational contract in between other hypothetical contracts

1.2.5. Liberal nationalism as a requisite for secession

1.2.6. The place amongst the theories of secession

1.2.7. The excessive fragmentation objection

1.3. The principle of nationality

1.3.1. Nations as encompassing groups

1.3.2. National and ethnic minorities

1.3.3. A defence of national self-determination 1.3.4. Distributive justice and secession

1.4. Complementary causes to legitimize secession

1.4.1. Colonialism and imperialism

1.4.2. Occupation and domination

1.4.3. Serious and persistent violation of human rights

1.4.4. Economic exploitation and marginalization

1.4.5. The right of minority nations to self-protection 1.4.6. Violation or failure of internal self-determination

1.4.7. Previous statehood and historical rights

1.4.8. Non-violent secessionist movement and excessive State coercion

1.4.9. Normative effects of complementary causes

2. SECESSION IN INTERNATIONAL LAW

2.1. Self-determination of peoples 2.1.1. Self-determination and democracy

2.1.2. Self-determination as a legacy of the World Wars

2.1.3. Three types of secession under customary international law

2.1.4. A utopian type of secession to foster perpetual and just peace

2.1.5. Violation or failure of internal self-determination as more realistic types of secession

2.2. Unilateral declarations of independence under international law

2.3. Effectiveness and international recognition

3. SECESSION IN CONSTITUTIONAL LAW

3.1. Constitutional right to secede and constitutional reform

3.1.1. Constitutionalizing the right to secede as a type of constitutional reform

3.1.2. Constitutional reform and secession

3.2. The principle of democracy and secession

3.3. Representative democracy and secession

3.3.1. Importance and dangers of the principle of representation

3.3.2. Declaration towards independence

3.4. Referendum democracy and secession

3.4.1. Significance and problems of the referendum

3.4.2. The clarity of the question

3.4.3. The clarity of the majority

3.4.4. The individual right to vote on secession

3.4.5. A secession strategy in adverse liberal-democratic contexts

3.5. Consensual secession

3.6. Internal self-determination

3.6.1. Illegitimacy of unilateral internal self-determination

3.6.2. Institutional disobedience and unilateral self-determination

3.6.3. Internal secession as the creation of new States within a federation

3.7. Unilateral secession

3.7.1. The awakening of a constituent people

3.7.2. The emergence of a new legal order

3.7.3. Unilateral declaration of independence beyond theory

Epilogue

Bibliography