New Publication: Mind the Gap Between Federalism and Secession

On 4th March 1861, President Lincoln in his inaugural speech declared that ‘[p]erpetuity is implied, if not expressed, in the fundamental law of all national governments.’ Just a month before the start of the American civil war, he declared secession as ‘legally void’ given that ‘no government proper ever had a provision in its organic law for its own termination’. In a similar spirit of constitutional self-preservation, most federal orders adopt ‘provisions that prevent the defeat of the basic enterprise’. As Jellinek put it, ‘political suicide is not a legal category.’ This is why scholars such as Sunstein have questioned the prudence of constitutionally enshrining a right to secession. For them, codification would make it more likely to fuel than quell secessionist sentiment.

Lincoln's swearing-in at the partially finished U.S. Capitol in Washington, D.C.on March 4, 1861

And yet, since the time of Lincoln’s speech, legal developments challenge the idea that secession is a legal taboo. In its Advisory Opinion on Kosovo, the International Court of Justice reaffirmed that international law does not ban secessionism. The Supreme Court of Canada provided for a procedural framework that makes Quebec’s secession possible if it complies with certain fundamental principles including federalism. Some constitutional orders exhibiting federal characteristics such as Ethiopia provide in black and white for ‘an unconditional right to self-determination including the right to secession.’ In 2014, a lawful referendum was organised in Scotland to decide its constitutional future while Northern Ireland is one of the few substate entities that enjoy a constitutionally enshrined right to secession.

Precisely because the actual legal landscape provides for a much more complicated picture of the relationship between federalism and the right to secession than what conventional wisdom suggests, the aim of my most recent article is to revisit this age-old debate. Overall, in this article, I do not question the fact that a number of federal constitutional orders are reluctant to recognise the possibility of consensual external secession. However, I argue that it is possible to understand federalism in a way that allows for the accommodation of secessionist processes that take place at every level of a federal order (substate; state; supranational). Such understanding is based on the principle of subsidiarity and the pragmatic nature of federal arrangements.

You can freely download the article from here and here.

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