Secession and Self-Determination |
|||||||||||||
Book Review Last year’s contribution to the NOMOS series, Secession and Self-Determination is an edited volume addressing a multitude of questions and problems relating broadly to the themes of minority nationalism and collective self-determination. Allen Buchanan, one of the foremost normative scholars of secession, writes the introduction to the volume and also contributes an essay on Quebec.To give some context to the current scholarly debate on normative aspects of secession, Buchanan is an advocate of what he calls Remedial Right Only (RRO) theories of secession rights, which hold that a national group enjoys a unilateral right to secede if and only if its members have suffered serious, fundamental injustices and secession is the only alternative left to remedy those injustices. “Serious, fundamental injustices” here refer to actual threats to life and health, including sustained policies of genocide or ethnic cleansing – not to moderate economic discrimination, let alone interference with property rights and trade. RRO theories strictly confine the right to secede to a small set of cases. RRO theories contrast with positions that no right to secession exists and with liberal and nationalist variants of Primary Right theories of secession rights, which hold that a group has a basic right to secede whether or not serious injustices have occurred. Nationalist variants of this theory holds that every nation (that is, a territorially concentrated, historically continuous ethnic group) should be allowed to have its own state if it chooses. Liberal Primary Right theories hold that because government’s legitimacy derives solely from consent, any group of people may withdraw their territory from an existing state and set up a new state, so long as a majority of the group agrees and the rights of the minority are respected in the new state. To ban secession of this kind would be to render government illegitimate by forcing nonconsenters to remain subject. Buchanan has directed his firepower mostly against liberal Primary Right theories. Whatever their advantages from a theoretical moral point of view, he argues, they create the wrong incentives for a regime of international law. If governments knew that they could lose part of their territory due to a majority referendum, they would undertake population transfers or perhaps even genocide to prevent this occurrence. Likewise, secessionist movements would try to migrate strategically to certain areas in order to constitute a majority and then to secede. In addition, international law is a creation of existing states, and they are highly unlikely to endorse any liberal theory of secession that could threaten their own existence. RRO theories are “morally progressive,” Buchanan argues, because they help to remedy injustices and in fact build in a punishment for undertaking policies like genocide and ethnic cleansing. Nevertheless, it is not clear that whether an international law right to secede should exist or not is the only or even the most important normative question about secession. As Mark Brandon notes in this volume, international law faces four challenges: it possesses no mechanism for generating authoritative norms, no agreement on the locus of sovereignty (the state or the people), no agreement on the criteria for establishing sovereignty, and no institutional means for enforcing norms (307n). When we wish to develop criteria for determining whether an existing state or multilateral institution should send troops or money somewhere around the world, perhaps we should try to render the circumstances under which such aid would be given very stringent indeed. At the same time, however, moral theories of secession rights should have a great deal of relevance for domestic actors who are dealing with secessionist conflicts. To the credit of Buchanan and his co-editor Stephen Macedo, this volume deals not just with the international law questions of secession, but also with the domestic constitutional environment. Indeed, Buchanan’s own contribution analyzes the Canadian Supreme Court’s judgments on the Quebec secession issue. The first two essays in the volume do, however, examine the international legal aspects of the secession issue. Diane Orentlicher argues that a right to secede is emerging in international law from the long-established right of self-determination, which previously has been applied only to decolonization efforts. As evidence she points to the Badinter Commission set up by the European Union to negotiate the independence process for the former Yugoslav Republics in 1994 and 1995. She says that the emerging international law on this issue holds that a secession right is remedial only, not primary, and that free and fair balloting should be used whenever possible to resolve territorial disputes (25). While she strongly asserts that international law should develop to deal with secessionist conflicts, it is also clear that the international community has historically dealt very badly with secessionist crises. The Badinter Commission’s requirements promoted the premature secession of Bosnia and sparked a major war, while on the other side of the spectrum, the United States and its allies stood by and refused to offer diplomatic recognition or any kind of assistance to Lithuania when an eminently deterrable Mikhail Gorbachev successively embargoed and invaded it after its declaration of independence. Orentlicher’s contribution sits at an uncomfortable medium level of abstraction, eschewing the abstract debate on the justice of secession but also tending to avoid the difficult, specific questions about what international institutions can do to alleviate secessionist conflicts. Donald Horowitz, probably the world’s best recognized expert on ethnic conflict, argues against Orentlicher’s position favoring an international law right to secede of any kind. He argues on the basis of his empirical research that secession does not solve ethnic conflicts, only displacing them to a lower level, and that secessionist mobilization takes an extreme toll on the societies in which it occurs. He also maintains that no right to secede of any kind exists in international treaties and other instruments of international law. He even argues that the proper revision of boundaries is “upward, not downward,” comparing large, diverse India’s success at containing ethnic conflict to small, bipolar Rwanda’s failure (56). While his bringing to bear real-world research onto the debate is needed and refreshing, Horowitz’s perspective is limited by the regions dominating his research: Africa and Asia. In these regions of the world secessionist conflict has indeed polarized societies and created an unhealthy revival of virulent ethnic nationalism. In the advanced democracies of the world, however, secessionism is largely peaceful and democratic and has few of the adverse consequences seen in Eritrea, Bangladesh, East Timor, and other post-secessionist countries in the Third World. More fundamentally, it is not clear that secessionist movements are to blame for civil war, ethnic polarization, violations of human rights, and everything else that seems to follow from secession attempts in less developed countries. One could with considerable justice argue that intolerant central governments are responsible for all these undesirable outcomes, by not allowing a right to secede. By this logic, denying the right to secede should exacerbate these problems, not alleviate them. Compare Horowitz’s vaunted India, which suppresses secessionism and is perpetually fighting minor civil wars, to Great Britain, which tolerates it and does not see secessionist violence at all (the Northern Ireland conflict is irredentist, not secessionist, and for several reasons this type of irredentist conflict is less amenable to peaceful solution than are secession attempts). Thinking in ideal terms, we might wonder whether the world would be a better place if secession were unthinkable, or if it were unthinkable to suppress secession by force. Horowitz’s own research shows that in places such as Nigeria and Sri Lanka, secessionist movements emerged only after decades of severe discrimination, repression, and even mass killings and riots against the ethnic minority concerned. Majority ethnic groups would undoubtedly feel more comfortable undertaking these kinds of abuses of human rights if they knew it was impossible for their victims to retaliate by seceding. By contrast, in a world in which suppressing secession by force is unthinkable, central governments could respond to secessionist threats only through accommodation. In fact, research shows that in Europe, central governments have responded to secessionism precisely with greater regional autonomy and federalism. We should also separate the issue of secession’s desirability from the issue of whether a right to secede should be recognized. Wayne Norman, who is generally critical of secessionism, makes the welcome point in his contribution that constitutionalizing secession removes the uncertainty surrounding the issue and could “declaw” it (193). He analogizes secession to “vice crimes” such as prostitution and drugs, making the point that legalizing such activities could render them harmless, just as legalizing secession may forestall actual secessionist mobilization. Norman recommends adopting supermajority requirements for secession directly into constitutions, with the idea that if these requirements are stringent enough, secessionist movements will be deterred from mobilizing in the first place, while if no constitutional provisions for secession exist, secessionist movements will attempt to define the “trigger point” for themselves and thereby take the moral high ground. Adopting supermajority requirements for secession runs the risk of deterring desirable secessions and fomenting discontent in regions that see their self-determination denied by constitutional provisions to which they did not assent. On the first point, all authors in this volume who address the secession issue assume without discussion that secession is always an evil (except perhaps to remedy “serious injustices”). Nevertheless, there are good reasons to expect secession to be a positive good in some cases, if pursued peacefully and democratically, with robust respect for individual rights and within an international framework of cooperation and free movement of goods, capital, and persons across borders. Under these (somewhat ideal) circumstances, creating additional jurisdictions will have important political and economic benefits, making government more accountable and less able to confiscate property and otherwise oppress its citizenry. On the second point, imposing a stringent secession requirement on a region that is already potentially secessionist, such as Quebec or the Basque Country, is likely to generate a firestorm of protest and possibly violence where little previously existed. Any constitutional provision relating to secession should be adopted by unanimous consent of all political subunits to whom the provision applies. In addition, vote-trading on constitutional issues should not be allowed. Norman advocates trading a rigid secession procedure for generous provisions on regional autonomy, special representation, language rights, and so forth (227). However, as public choice economists have demonstrated, once vote trading is brought into a legislative situation, there may be undesirable consequences for all parties – and more so for the constituents of the representatives involved in constitutional bargaining. It is better to deal with secession rights as a separate, distinct issue. Buchanan analyzes the Canadian Supreme Court’s approach to Quebec secession. In the wake of Quebec’s 1995 referendum on secession, which failed by less than a percentage point, the Canadian federal government referred the question to the Supreme Court. The Canadian Supreme Court denied Quebec’s right to secede unilaterally, while at the same time holding that when a “clear majority” in a Canadian province votes on a “clear question” in favor of sovereignty, the federal government and the provincial government concerned have a duty to negotiate in good faith. Such negotiations must follow constitutional procedures and may not foreclose secession from the start, although secession would require a constitutional amendment. Buchanan generally praises the decision for pursuing a middle course and recognizing the rest of Canada’s “legitimate interests” involved in any Quebec secession attempt. He notes three aspects of “unfinished business” not adequately dealt with in the decision. First, the Court does not define what counts as a “clear majority” on a “clear question” and in fact explicitly left this issue to be decided by the parties to negotiations. Since the Court decision, however, the Canadian and Quebec governments have adopted different definitions. The Canadian government’s Clarity Act reserved to the Canadian government the sole right to determine what counts as a clear question and a clear majority. Arguably, the Clarity Act violates the constitutional principles set forth by the Court in their decision. Meanwhile, the Quebec government defined a clear majority as fifty per cent plus one. If discussions break down after a successful referendum, what happens? If the status quo prevails, then the Canadian government has no incentive to negotiate in good faith. Buchanan argues that the Court should have required the negotiators to pursue international mediation without powers of compulsion. Finally, the Court did not address adequately the status of Native peoples in Quebec, in Buchanan’s view. Native tribes vehemently oppose Quebec secession because Quebec governments have in the past attempted to use Native lands for hydroelectric projects, and because Native rights are currently safeguarded under the Canadian constitution. Buchanan takes a position that he recognizes as radical: requiring Quebec to submit to international arbitration over the status of Native peoples. While he is rightly concerned with securing Native autonomy in the aftermath of secession, compulsory international arbitration would be an egregious violation of Quebec’s sovereignty, to which other independent states do not have to submit. Why should Quebec be singled out for potentially harsh treatment? A better idea may be to give Native peoples a right to become independent themselves, while forbidding them from rejoining Canada if they exercise that right. In any event, neither of these proposals is likely to become reality. Mark Brandon presents another argument for constitutionalizing secession. Apart from Horowitz, therefore, there seems to be a consensus among this volume’s contributors that constitutionalizing secession is desirable. Brandon develops his argument in the context of the Confederate states’ secession from the United States in 1860-1. He argues that secession is always a constitutional right in constitutional systems, because all constitutional systems have a founding myth justifying their own development from whatever came before (275). In the United States, the Constitution’s development was technically illegal, unauthorized by the Articles of Confederation, which described the confederal system as “perpetual.” Nevertheless the United States Constitution was justified on its own terms as being the creation of the people, necessary for the protection of individual and minority rights as well as for democratic self-government. In the same way, the secession of the Southern states was constitutional because secession conventions were endorsed by the people of the Southern states, and because ordinances of secession were adopted in convention through normal legislative procedures. The U.S. Constitution and Declaration of Independence were motivated not just by majority rule, but by minority and individual rights. Thus, secession cannot be unconstitutional when it allows a deeply alienated, permanent minority to escape a rule it views as unjust (286). Brandon argues that his view does not rely on an “antifederalist” conception of “states’ rights,” but merely on the United States’ founding myth. The logic of a government’s founding myth compels that government to recognize other foundings motivated by the same logic. Although the Southern states endorsed slavery, this deviation from constitutionalism did not render illegitimate their secession from a political entity that recognized slavery in its own constitution (291). Brandon’s argument is especially compelling when applied to the modern-day United States, when basic human rights are not likely to be affected by secession, but alienated minorities that may wish to secede are certainly identifiable. Apart from the contributions above dealing with international and domestic aspects of secessionism, there are four papers dealing with the tenuously related topics of indigenous autonomy and minority language rights. The inclusion of these papers renders the volume somewhat incohesive, and it is difficult to address these other, important topics fully in a series of four papers. Margaret Moore argues that indigenous self-determination has a special historical component deriving from the grave injustices inflicted on indigenous peoples in the recent past. The argument for indigenous self-determination thus goes beyond standard arguments about liberal consent theory and the benefits of cultural preservation to ideas of righting historical wrongs and restoring self-government that previously existed (92-93). Whenever injustices are recent enough to have identifiable effects but distant enough in time to be attributable to generations no longer extant, the proper way to enact restitution is a difficult moral matter. Moore argues that significant, ongoing resource transfers are the best way to compensate for these injustices, although she also recognizes that direct redistribution to individuals can create incentives for dependency, not self-determination (108). Accordingly, she favors setting up collective institutions to handle these resources, such as Native schools and community organizations in the United States and Canada (110). Unfortunately, this proposal simply seems to displace the problem, rendering Native leadership dependent and possibly promoting racial separatism (Moore rejects using cultural criteria for membership in Native organizations, leading one to wonder what criteria would be used to exclude anyone from participation, besides skin color or ancestry). Ruth Rubio-Marín takes up the problem of minority language rights. Her primary aim in this essay is to argue against the immigrant-national minority dichotomy. Most governments currently afford national minorities much more extensive language rights than they do immigrants, even when the immigrant groups are much larger than the national minorities (think of the Romansch language’s status in Switzerland). One argument supporting the difference in treatment holds that immigrants consent to joining the majority culture. Rubio-Marín argues that immigrants are not really giving free and informed consent when they migrate, because they are fleeing huge economic disparities or are allured by the false promises of capitalist multinationals (139). Despite the fact that Rubio-Marín has a much narrower, more metaphysical conception of consent than do libertarians, the fundamental point seems basically correct, that immigrants may want to come for a better life, but there is no way to know whether they consent to joining the majority culture of their new country. Is it thus the responsibility of taxpayers in the receiving country to provide new facilities for immigrants to maintain their cultures? Rubio-Marín thinks so, and provides some criteria for determining how extensive language rights should be, which are supposed to apply both to immigrants and national minorities. Alan Patten critiques these criteria and notes that they could mean in practice that Chinese immigrants in Toronto, for example, should enjoy greater language rights than Crees or French Canadians outside Quebec and New Brunswick, which seems counterintuitive (182). Patten argues that lower levels of language provision for immigrants can be justified by the interests that existing societies in a receiving country have in protecting their own cultures, whether or not immigrants “consent” to these cultures (185). Minority language rights are an inescapable issue, even for libertarians. If a government exists, it cannot be completely language-neutral. Government officials must speak in a language, and government signs and forms must be written in a language. We need criteria to determine what languages government should use in its own functions. While Rubio-Marín and Patten draw on some intuitively appealing criteria, a libertarian would likely draw on libertarian principles of justice, which require compensation to those who have been harmed by discriminatory language policies in the past. Thus, given that the government runs schools in the Hebrides of Scotland, it may be desirable for those schools to feature instruction primarily in Gaelic, given a background of nearly a millennium of concerted governmental effort at exterminating Gaelic language and culture. Even where Gaelic speakers represent a small majority of the population, it may be desirable to compensate them for the discrimination they suffer today because of the policies of the past. The compensatory logic for minority language rights provides another reason why immigrants and national minorities may frequently differ in the language rights they can legitimately expect to enjoy. Secession and Self-Determination is a stimulating and useful addition to the NOMOS series and provides an excellent starting point for those interested in exploring the normative literature on the topics of secession and international law, secession and constitutionalism, indigenous self-government, and minority language rights. As already mentioned, some of the contributions could have made use of empirical data, and the range of topics included is quite wide. But the point-counterpoint structure of the essays helps to fix the debate and has led to real progress in the state of contemporary argumentation and thinking on these topics. Secession and Self-Determination thus represents a significant contribution to the literature in the field. |
book reviews
