Citation: 13 Can. J. L. & Jurisprudence 251 2000
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Toward a Proceduralist Theory of
Daniel M. Weinstock
A fully adequate theory of secession would have to address a number of interrelated yet conceptually distinct questions. First, it would obviously have to determine the conditions under which a secession might be seen as morally legitimate.
Second, it would have to answer the question whether multination states should
countenance only morally justified secessions. These two questions are importantly
distinct, though theorists have tended to assume that an answer to the first question
settled the second. This is a mistake: there are often both prudential and moral reasons to allow, and even legally to provide for, certain kinds of immoral, or barely
moral, behaviour.' Such behaviour is easier to regulate if it occurs within a legal
framework that can spell out the conditions under which the behaviour in question
can be engaged in. What's more, citizens reflecting upon the terms of their political
union with others, might have good moral reasons not to have the state "legislate
morality". They may sometimes have good reason to want the state to allow them
to behave in ways which may seem regrettable from a moral point of view.
A further question has to do with the conditions under which other states should
recognize another state newly created through secession. Again, one might think
that an answer to either of the foregoing questions forecloses the issue of international recognition. One might think that the international community ought to
recognize only secessions that are legitimate according to some substantive theory
of "just cause". Or one might think that secessions deemed illegal by the constitution of a multination state should for this very reason be denied recognition by
the members in good standing of the international community. Again, reasoning
of this kind would be altogether too quick. The fact that the claims of a secessionist
movement are not fully justified from the point of view of a substantive theory's
strictures does not settle the institutional question: further questions must be
answered before we can assert that prohibition is preferable to regulation in cases
of secessions which, while morally regrettable, do not involve any grievous violations of basic human rights. What's more, making the international community's
recognition of secessions dependent upon their legality from the point of view of
national constitutions seems unfair. Many constitutions of multination states are
simply silent on the issue of secession, and so in a sense even secessions which
met the standards laid down by a substantive theory might on this criterion be
I want in this paper to examine the views put forward by one 'substantivist"
theorist, David Miller, in his important essay "Secession and the Principle of
Nationality". 2 In my view, Miller commits the first of the two errors identified in
1.1 argue this at greater length in "On Some Advantages of Constitutionalizing the Right to Secede"
in J. Pol. Phil., forthcoming.
2. David Miller, "Secession and the Principle of Nationality" in J. Couture et al.,
eds., (1996) 22
Can. J.P. Supp. Vol., Rethinking Nationalism.
Canadian Journal of Law and Jurisprudence
Vol. XIII, No. (July 20 00)
the foregoing paragraph, that of inferring how the international community ought
to react to a secession from a consideration of the secession's independent moral
warrant.' I will first examine the content of Miller's substantive view. I will then
offer some considerations which will tell against attempts such as Miller's to derive
conclusions about international recognition of secessions from a mere consideration
of their moral credentials. I will finally offer a rapid sketch of the kind of procedural
view I think would be preferable to orient the reaction to secession of both the larger
multination state and of the international community.
Miller's intention in "Secession and the Principle of Nationality" is to avoid the
extremes of overly conservative and of excessively permissive theories. He also
wants to steer clear of "primary right" theories, which claim that groups have a
right to secede (to the extent that they clear appropriate procedural hurdles) regardless of the strength of the case which members of the group might have against
the larger society. He believes that the task of formulating a substantive political
theory of secession-viz., one that allows us to distinguish better and worse grounds
for secession-ought to be considered a conceptually prior task. Such a theory
would in Miller's view have as its task guiding the relevant actors in a secessionist
scenario: "would-be secessionists, non-secessionist citizens of the relevant state,
and members of the international community" 4. Miller's position is however interestingly different from the "remedial right only" kind of theory which has been
developed most notably by Allen Buchanan5. In Miller's view, the principles which
ought to guide us in deciding whether to vote for secession if we belong to the
would-be secessionist group, to accept the secession if we are members of the rump
state which would be created by secession, and to recognize the secession if we
are members of the international community, would permit secessions in a broader
range of cases than admitted by Buchanan's much more demanding substantive
theory. One's national group need not on Miller's view be on the verge of extinction
at the hands of a predatory larger society in order for a secession to be justified.
The nationality principle developed by Miller in his earlier work in his view
allows us to make a first, rough-hewn distinction between legitimate and illegitimate
secessionist claims. Roughly speaking, only groups with a distinct national identity
can legitimately claim secession, and this claim is made stronger to the degree that
the identities of the members of the secessionist group are not intermingled with
3. An author who in my view commits the second error, that of inferring what a morally appropriate
reaction on the part of the international community should be to a given secession from the legality
of the secession as seen from the point of view of the larger state's laws, is Allen Buchanan, In
"Recognitional Legitimacy and the State System" ((1999) 28/1, Phil. & Publ. Aft. 46), Buchanan
writes that "if a new entity is to be awarded statehood status it must not come about through the
violent or otherwise unlawful overthrow of a recognitionally legitimate state." Ibid. at 61 (my
emphasis). Such a view however ignores the fact that the omission by otherwise just multination
state constitutions of secession clauses might itself be unjust.
4. Supra note 2 at 264.
5. See for example, Allen Buchanan, "Theories of Secession" (1997) 26/1 Phil. & Publ. Aff. 31.
Toward a Proceduralist Theory of Secession
those of the larger society. When, as a result of continued non-recognition (as in
the case of the Kurdish minority at the hands of the Turkish government), a national
group feels that it has nothing in common with its oppressors, this counts as a prima
facie consideration in favour of secession. Miller implies conversely that identityintermingling gives the members of a larger society a prinafacieclaim against
accepting a minority group's secessionist suit. Let me refer here to the identity
Next, Miller argues that a secessionist group must have a legitimate claim to
the territory it occupies. In his view, a group establishes such a claim by moulding
it according to its will: setting up institutions upon it, legislating for those who find
themselves within its bounds, investing it with traditional significance, etc.
According to Miller, this claim grounds a legitimate claim to secession to the extent
that this working over of the land has not been the result of a joint enterprise in
which both the would-be secessionist group and the larger community embarked
upon as free and equal partners, but rather of the unwilling incorporation of one
group by the other. Let me refer back to this consideration as the territorial
Third, Miller argues that the overall situation of minorities must not be worsened
by a secession. That is, the situation of the minorities which would be created by
secession within the secessionist state, as well as the situation of the minorities in
the rump state, must be at least as good as had been the case prior to the secession.
This establishes aprimafaciecase for the greater legitimacy of secessions initiated
by groups whose national identity is sufficiently fluid to incorporate aspects of
minorities' identities, as against national groups whose identities are organized
around a more rigid ethnic or religious component. Call this the minori, argument.
Fourth, and finally, the secession must not be in violation of principles of distributive justice. As Miller notes, however, this principle can cut both ways: in situations in which a minority has been oppressed by the majority, it is likely that
they will have been victims of unfair distributive arrangements, so that, ceteris
paribus,breaking the communities apart will tend to create two fairer societies.
However, particularly where there has been cooperation between communities on
the territory occupied by the national minority, secession might unfairly deprive
the rump state of resources that are legitimately theirs. Also, secessions of richer
national minorities might leave the rump state in an unacceptably weakened state
adequately to see to its members material needs. Call the view according to which
secession should not lessen the extent to which principles of distributive justice
are satisfied for all concerned the distributive argument.
Miller has thus produced a subtle, pluralist, substantive theory of secession, one
which allows us to assess the legitimacy of secessionist claims along a variety of
(obviously relevant) dimensions. Let me now argue why we ought nonetheless to
reject Miller's theory.
Let me first say something about the first three of these arguments singly. I will
then make some general remarks concerning the difficulties which substantive theories of secession such as Miller's encounter.
The identity argument seems to me to be vulnerable to two objections. First,
at least as stated, it ignores the dynamics of national identity formation. National
identities are not, to (mis)use a Humean phrase, "original existences". They are
born of identifiable political struggles and institutional contexts. For example, contemporary Qu6bcois national identity emerged from a more territorially diffuse
French-Canadian identity in a conscious modernizing project aimed at providing
North-America's French minority with the trappings of statehood. As a result,
Qu6b6cois identity was partially freed of its ethnic and religious roots so as to
become more encompassing, and it was concentrated on an identifiable territory
more readily employable as the basis of statehood. Many, if not all, European
national identities are the result of XIXth century processes of nation-building in
which more local identities were trampled through illiberal policies of cultural annihilation. It is a truism that that most centralized of European nations, France, only
included a majority of French-speakers until fairly recently. African national identities often came about as a result of complex political and cultural processes
unleashed by colonialism and by the responses to colonialism.
Thus, national identities form in part as a result of political agents' calculations
about the relative benefits associated with giving a cohesive national identity to
a given set of individuals. Whether such nation-building projects "take" or not is
also a function of myriad factors, ranging from the linguistic and cultural to the
geographic. But history shows that there is a fair degree of malleability to national
identity, and that a significant factor has to do with the cost-benefit calculations
in which political agents engage regarding specific struggles and institutional contexts where they happen to find themselves.
So the idea that, when faced with a secessionist claim, we in the international
community could just "look and see" whether the group making the plain actually
possesses a sufficiently distinct national identity is somewhat naive. It is not as if
our "looking" would simply discover an independently existing reality upon which
we could then report. The fact that we are looking for distinct national identities,
that we consider the possession of such an identity as criterial in the process of
granting recognition to secessionist projects, and that this is known to all concerned,
will create new incentives which will alter the behaviour of political actors. If the
"Padanian" secessionist movement were ever to pick up steam, the requirement
that Padanians "look" more like a national group than they presently do would not
be difficult to meet. Nationalist mythologies are fairly easy to create, and given
the circumstances of the broader Italian nation's creation fairly recently out of a
motley of duchies and principalities, the relevant Padanian identity would not be
all that difficult to cobble together. Thus, the problem I see with the identity argument is that it purports to apply an identity criterion to an independent reality, but
its wide currency would contribute to the creation of that reality.
Toward a Proceduralist Theory of Secession
A second problem has to do with the relationship between what one might call
cultural oppression and cultural distinctness. For Miller, what really matters is that
a secessionist group possesses a separate national identity, one which is not too
intermingled with the national identity of the majority in the broader society. Miller
suggests that, in the standard cases, the degree of mingledness is inversely proportional to the unfairness suffered at the hands of the majority. The view suggested
is that, if minority and majority have been on good terms, then it is likely that they
will have been led to various forms of economic, cultural and political collaboration,
and that their identities will thus have tended to blend into one another. Thus, by
tracking distinctness of national identity, we would, indirectly but reliably, be tracking injustice and oppression. Recognizing the greaterprimnafacie claim to secession
of national groups with distinct identities would, if this causal hypothesis were true,
simply amount to recognizing the greater legitimacy of claims made by historically
I fear that the causal hypothesis upon which this story hinges is unsustainable.
When cultural oppression is effective, it effectively obliterates minority cultures
by destroying, through unjust laws and sometimes by brute force, the economic
and institutional wherewithal required to maintain distinct cultures. In such cases,
members of cultural minorities will actually look less distinct from the majority:
they will often have been forced to take on the language and sometimes even the
religion of their oppressors, either at the point of a gun or as a result of last-ditch,
desperate calculation on the part of the leaders of the downtrodden group. On the
other hand, more accommodating majority national cultures will often be much
more generous with their minorities, and thus will allow them much more institutional space in which to express their distinct character0 Quebec, for example,
has been rather fortunate in having been allowed to establish the use of French as
the official language of the Qub~cois public sphere. The result is that Qudbec culture "sounds" much more different from English Canada than do the Afrikansspeaking descendants of the Khoikoi in South Africa from either Xhosa or
Afrikaner national cultures. Yet, the level of cultural oppression suffered by the
former pales into insignificance compared to that endured by the latter'.
Thus, the link between cultural oppression and cultural distinctness is a lot more
complicated than Miller lets on. And if that is the case, it follows that tracking
national distinctness as a way indirectly of tracking cultural oppression will not
work. And cultural distinctness is, taken in and of itself, a fact of no particular moral
valence. It thus seems an inappropriate element in a substantive theory that purports
to assess secessionist movements according to the normative legitimacy of their
The identity argument therefore risks inadvertently privileging the claims of relatively well-treated minorities, and downplaying those of the truly oppressed. I fear
6.1 hasten to add that this has not been the result of the altruism and generosity of English
Canadians. There is an identity stake for all Canadians in Qudbcc remaining Francophon. Indeed,
much of English Canada's sense of distinctness vis-d-vis the United States stems from their having
been able to point to the presence of French culture in their midst.
7. 1 thank Elizabeth Elboume for insight into the South African case.
that this is also the effect of the territorial argument. According to Miller, a group's
title to territory is a function of its having shaped it with its will, by creating institutions upon it, making laws to govern the people within it, and investing it with
symbolic significance. Let me refer to this as the occupationcondition. The problem
is that this condition, which is at the core of the territorial argument, would have
us tacitly condone all manner of conquest and subjugation. Those who satisfy the
occupation condition have often been able to do so by wresting the hold which
another group has exercised on the same territory. In contemporary North America,
for example, Miller's occupation condition would have us consider more legitimate
the secessionist claims of the Qu6becois, who established their title over New
France through colonial conquest, than to the descendants of those aboriginal
Nations whose ancestors saw their cultures laid waste by colonialism. The
Qu6b6cois have clearly informed the land they occupy with their collective will
to a far greater degree than the First Nations have. Yet it seems odd to claim, as
the occupation condition would surely have us claim, that a Qu6b6cois secessionist
claim would, all things equal, carry more legitimacy than would the analogous
claims made by the Mohawks or the Cree. The Qu6b6cois claim might be more
realisable,but to conflate feasibility and legitimacy would surely concede far too
much to Realpolitik.
Thus, as had been the case for Miller's identity argument, once it was unhinged
from the shaky empirical hypothesis tying it to cultural oppression, Miller's substantive theory seems strangely amoral. It would have us acquiescing to the secessionist claims of groups which satisfy objective criteria such as effective occupation
and cultural distinctiveness which do not seem to have any obvious ethical standing.
A word about the distributive argument: Miller's thinking seems to be that groups
attempting to secede have been victims of unjust distributive schemes within the
broader society; if so, then secession would create two more culturally homogeneous states whose members would be tied to one another through the kind of
nationalist sentiment, which would make distributive justice among members more
probable. I have already argued at length against the ease with which nationalist
authors such as Miller and Tamir have assumed that cultural homogeneity and distributive justice go hand in hand.8 I want to make two points which would obtain
even if we accept for the sake of argument the hypothesis of spontaneous national
partiality. First, secession might make both parties less able to improve the material
conditions of their members than they would have been in the larger society. Indeed,
larger societies can achieve economies of scale, and can draw on the resources of
the whole for the benefit of all in a way which makes them less vulnerable to economic volatility. For example, a sovereign Qu6bec would be economically much
more dependent than it presently is upon the continued health of the American market for its hydroelectrical power, and would no longer benefit from the transfer payments, when its own economic fortunes are sagging, which it can now count on
from the rest of Canada. Another way to put the point is that secession transforms
8. See my "National Partiality: Confronting the Intuitions" (1999) 82/3 The Monist 516. See Y.
Tamir, Liberal Nationalism, (Princeton, N.Y.: Princeton University Press, 1993).
Toward a Proceduralist Theory of Secession
national obligations into international obligations. And while it is not clear (at least
to me) that the latter are on a morally weaker footing than the former, it is clear
that distributive obligations within a state are easier to enforce than obligations
Second, secession may change the political balance in such a way as to create
less overall distributive justice for all concerned. For example, were Scotland to
secede from the U.K., it would be much more likely that the population of the rump
state would languish under the heartless policies that the Tories under Thatcher
and Major had made their stock-in-trade. Arguably, the newly formed National
Conservative Alliance in Canada will be kept from power by the massive refusal
of the Qu~becois to endorse their economically and socially reactionary views.
Thus, even if one accepts the idea that it is important to develop an appropriate
substantive political theory of secession, it is far from clear that Miller has come
up with an acceptable theory. His theory ends up legitimizing states of affairs that
seem far too arbitrary from a moral point of view to carry much weight in determining how we ought to react to secessionist claims. And from the point of view
of distributive justice, it is unclear that the world would be a better place were larger
states to break into their component ethno-cultural parts.
I don't think, however, that we ought to grant Miller his premise that we should
be guided in our thinking about secessionist crises by the kind of substantive theory
he recommends. Let me first comment on the relation between substantive and procedural theories of secession. Substantive theorists can be divided into two types:
pure and hybrid. Pure substantive theorists believe that the legitimacy of a secessionist claim ought to be guided by principles, as it were, all the way down. They
hold that the question of whether the international community should recognize
a secessionist claim should depend on the extent to which the secessionist group
meets a set of substantive criteria. A "pure" version of Miller's substantive theory
would make the legitimacy of secession depend upon whether the secessionist group
possesses a distinct identity to the required extent and upon the legitimacy of its
title to territory. It would also require that the secession not hinder minority rights
and distributive justice beyond a certain point.
Pure substantive theories face an obvious problem of operationalization. Indeed,
how are we, in the international community, to determine what the required levels
of the satisfaction of principles are to be, and whether these levels have been reached
in any given case of secession? Individual states could not be counted upon to assess
such matters in a dispassionate manner, as most would presumably have an interest
in a secessionist crisis turning out one way rather than another. One might imagine
using international tribunals, such as the International Court at the Hague, to render
such judgments But even if it could be constituted in a way that ensured a sufficient
9. Though not a substantive theorist, David Copp has made a suggestion of this kind. David Copp.
"International Law and Morality in the theory of Secession" (1998) 2/3 J. of Ethics 5 16.
level of impartiality, its decision to recognize or not to recognize secessionist claims
on the basis of the kinds of criteria Miller recommends would profoundly alter our
conventional understanding of the relationship in which democratic decision-making fora stand to international bodies. Let me explain why.
Let us begin by ruling out secessions which involve egregious violations of
minority rights or of distributive justice. I am assuming that we are dealing with
secessions which, while they might lead to losses as regards the principles that oversee such issues, do not involve losses any greater than those which might be given
rise to through the normal operation of democratic electoral politics not involving
secession. That is, voters in democratic societies will sometimes vote in governments which curtail the operation of the welfare state somewhat, or which restrict
immigration to some degree, or which display less generosity than their predecessors in funding minority language schools, etc. Again, assuming that the policy
changes are not morally catastrophic, there is no question of the international community sanctioning the offending party, or withdrawing recognition from it.
Ambassadors have to my knowledge never been recalled over policy changes such
as these, unless basic norms of human rights are at risk.
Imagine a referendum held among the members of a territorially concentrated
minority group on the issue of secession from the larger society. Assume that the
referendum passes with a sizeable majority. Assume finally that it is reliably foreseen that the secession will slightly worsen the situation of minorities in the seceding state and/or in the rump state, and that it will worsen the material condition
of all concerned. It is not inconceivable that Qu6bec's secession from the rest of
Canada would have this effect. There is no doubt that francophones outside Quebec
would not benefit from the same kinds of benefits they presently enjoy, since there
would be no reason for the rump Canadian state to continue its policies of official
bilingualism. Distributive justice might also suffer: The political spectrum in the
rest of Canada would shift significantly to the right, and would eventually bring
to power a party of American-style social and fiscal conservatives; these Canadian
politicians are presently relegated to the opposition benches largely by their inability
to get any Members of Parliament elected in Qu6bec. And redistributive obligations
which presently hold between Qu6becers and English-Canadians within the
Canadian state would be much harder to enforce, as they would have, after secession, the status of international obligations.
If we take Miller's substantive theory seriously, then this prospect should lead
us as international observers and actors to oppose Qu6bec's secession, even in the
face of a clearly stated expression on the part of the Quebicoisof a desire to secede.
Yet analogous developments would not raise an eyebrow were they the result of
normal, non-secessionist democratic politics. And the question is: why? In both
cases, votes will have led to a somewhat worse situation from the point of view
of minority rights and of distributive justice. In one case, lines on a map will have
been redrawn, and, in the other, they will have remained unchanged. Why, exactly,
would this make a difference from the point of view of the international community's response?
We feel wary of withholding recognition from secessionists, in the face of a clear
Toward a Proceduralist Theory of Secession
expression of secessionist sentiment, simply because their secession has given rise
to losses in terms of justice which would have seemed regrettable yet acceptable
had they been the result of non-separatist democratic political processes. This suggests (to me at least) that there is an asymmetry in our thinking about such matters
between what we might call recognitionaland the advocacy perspectives on secessionist politics; this is an asymmetry which the pure substantive theorist simply
fails to recognize. The fact that secession would lead to a worse situation from the
point of view of overall justice certainly constitutes grounds for members of the
would-be secessionist group not to vote for secession in a referendum or for secessionist parties in an election. It also gives reason to individuals outside to advocate
against secession. And it gives us reason to feel regret if the secession succeeds,
and relief if it fails. But here we are at the advocacy level, the level at which we
adduce grounds for or against given policies or measures, much as we would were
we considering whether to vote for party A or party B (or to advocate to our correspondents in other countries that they vote in certain ways rather than others in
The recognitional level is importantly different. The international system has
always operated on the principle that, so long as they are within an acceptable range,
the decisions of international actors will be accepted by the international community
(especially when they are taken democratically), even if some or most members
of that community deem certain decisions regrettable. I don't need to spell out the
resulting international convulsions were the advocacy and the recognitional levels
to be conflated, that is, were an international agency empowered to withhold or
withdraw recognition from international agents which took decisions which might,
on the balance of reasons relevant at the advocacy level, seem inadvisable. That
Miller does not see clearly the distinction between these two levels is clear from
the following passage, in which he argues for the need for a substantive, as opposed
to a merely procedural, theory:
We are looldng for guidance when we have to decide (say in a referendum) whether
to vote for secession or for remaining in association with a larger state.Equally we
need guidance about how to respond, as British citizens say, to demands for Scottish
or Welsh independence. We likewise need to know whether to recognize and support
a Slovenia that has chosen to sever its ties with the rest of the Yugoslav federation."
If what I have suggested in this section is right, then it follows that the considerations which guide us (at the level of advocacy) in deciding whether to vote for
or against secession in a referendum are not the same considerations which ought
to guide us, as international observers at the recognitional level, in deciding how
to respond to others' secessionist claims. All we need to be sure of at the latter level
is that the effects of secession will fall within acceptable bounds as far as justice
is concerned, and that secession is actually desired by a plurality of citizens. In
other words, substantive conditions impose thresholds for recognition. If these
thresholds are reached, then recognition ought to be triggered by the appropriate
procedures having been followed.
10. Supra note 2 at 264.
Thus, I suggest, Miller's claim that a substantive theory of secession is logically
prior to a procedural theory trades on the conflation of what I have called the advocacy and the recognition perspectives with respect to international affairs. Yet there
are good grounds to think that the international order depends upon these two perspectives being kept separate.
Substantive theorists needn't be purists, however. They can accept the need for
procedures in deciding secessionist crises, but hold that these procedures ought
to be tailored in such a way as to make it likely that only those secessionist groups
that have good substantive grounds to want to secede will actually be able to clear
the procedural hurdles." Raise the procedural bar high enough, the argument goes
(for example, by requiring a supermajority on a referendum), and the chances are
good that only those groups which have truly been oppressed will be able to mount
successful secessionist campaigns.
I don't want to spend too much time commenting on this kind of approach. Two
brief, unargued comments will have to suffice in the present context: first, note that
the hybrid substantive position depends upon the plausibility of the following empirical hypothesis: for the most part, most people who do not have good grounds for
seceding will abstain from doing so, or will abstain in sufficiently high numbers
that the secessionists within their midst will not be able to attain the required levels
of support. I don't want to suggest that I actually have good empirical grounds for
denying that this hypothesis holds. I merely want to highlight it in order to make
clear the challenge that faces the hybrid theorist. He actually has to cleave to the
belief that when asked whether they want to secede, people will actually vote as
they ought (i.e., as the substantive theory dictates), rather than according to their
self-interest or passions. The question that faces the advocate of the hybrid theory
is whether this belief is reasonable.
Second, it seems to me that if we want the question of secession to be determined
by an appropriately constrained democratic decision-making procedure, the constraints that we place upon the procedure should have some ethical warrant independent of their simply being effective, viz., in delivering the right set of results
in a succession of secessionist crises. It could be the case, for example, that lifting
the level of support which a referendum would have to attain in order to trigger
secession from a simple majority to two-thirds would have the effect that Wayne
Norman and others claim that it would have. But surely we also want to know
whether it would be fair to constrain democratic decision-making in this way.
Thus, it seems to me that difficulties loom for the supporter of substantive theories, whether they be pure or hybrid. In what follows, I sketch the rationale for
a purely procedural theory, one which abstains from basing the acceptability of
a given secessionist claim on an evaluation of would-be secessionists.
11. This kind of view is defended in Wayne Norman, "The Ethics of Secession as the Regulation
of Secessionist Politics" in M. Moore, ed., National Self-Determinationand Secession (Oxford:
Oxford University Press, 1998).
Toward a Proceduralist Theory of Secession
My conclusion on the basis of this (limited) assessment of the arguments of those
who want too hastily to draw institutional conclusions (to do with whether multination states, for example, should create a constitutional right to secede, or with
the conditions under which the international community ought to grant recognition
to new states formed through secessions) from substantive arguments is that we
ought to "go procedural" in a much more thoroughgoing way than theorists of
secession have thus far been willing to admit. My argument for this claim, spelled
out at more length elsewhere 2 , is based on both pragmatic and on moral considerations.
Pragmatically, I hold that it is often better to attempt legally to regulate and to
circumscribe behaviour which, while not morally admirable, does not contravene
any basic human rights or moral prohibitions, than it is to ban it outright. Take prostitution and drug use. Their outright prohibition basically relegates practitioners
to a legal nether world completely devoid of all regulation, in which the worst
excesses are tolerated. Once it is acknowledged that prohibition cannot eradicate
either practice, one must pragmatically assess whether a society's being able to
claim that its laws reflect its highest ideals and aspirations is worth the negative
consequences wrought by prohibition. My guess is that in many cases, such a consequentialist evaluation will favor decriminalization of the behaviour in question,
which (to avoid the problems associated with outright prohibition) would attempt
to circumscribe the behaviour in question within narrow limits.
My claim is that secessionist politics ought to be seen in the same light. History
teaches that secessionist agitation occurs regardless of the legal status which states
ascribe to it. It does not seem therefore as if outright prohibition has had much of
a dampening effect on secessionist ardor.
What's more, secessionist agitation which occurs in a legal vacuum, as is the
case in most modem states, can easily come to seem a cost-free political tool for
political entrepreneurs. Secessionist threats can be wielded almost at will to exact
concessions and extract advantages on the part of the larger state. This would not
occur within a constitutional context which circumscribed the right to secede quite
tightly. For example, the entrepreneurial use of secessionist threats by regionalist
politicians would be made much harder, say, by a constitutional provision which
prohibited referendums on secession from occurring too frequently. One can well
imagine that a provision creating a ten-year waiting period between secessionist
referendums would transform secessionist agitation in multination states from the
cheap resource which it currently represents into a much more precious commodity
indeed, one to be used only in the gravest of circumstances.
Another pragmatic virtue of a constitutional provision laying out a clear procedure which secessionists must follow in order to achieve their political objectives
would be to alter the relevant actor's motivations in a unity-promoting manner.
12. Supra note 1.
Indeed, in many relatively just and prosperous multination states, one of the principal irritants creating secessionist feeling is precisely the fact that the right to secede
does not exist. In many such states, a cold and lucid cost/benefit analysis of the
relative advantages of seceding or remaining within the larger state would probably
favour remaining. Constitutions which do not provide for secession under welldefined circumstances needlessly create an incentive to leave by making it seem
to members of minority nations that the decision to remain within the ambit of the
larger state does not really belong to them.
A secession clause might also moderate the centralizing zeal which many federal
governments might sometimes experience. A government that knows that provisions exist within its constitution to permit minority nations to go their own way
will be less tempted to ride roughshod over the collective rights of minority nations
than it would be if it felt it could do so with impunity.
What of the moral case for a secession clause? I think that such a case can be
made out, and that its conclusions dovetail with the pragmatic argument I have just
sketched. Consider a revised Rawlsian "original position", one in which participants
know that they represent members of national groups within a multination state,
but do not know whether they belong to the majority national group or to one or
another of the minority nations. They are asked to define terms to govern the relations of these national groups within the broader multination state.
Making the same kinds of assumptions about risk-averseness which Rawls made
famous in his argument", I hold that representatives of national groups placed
behind a "national veil of ignorance" would want to avoid two extremes: they will
not want to make secession too easy, as this might lead to foregoing the advantages
of cooperation; but they will not want to make it impossible, as they will want to
ensure that they will be able to escape the state if they end up being members of
a minority particularly hard done by. Thus, they will want to institutionalize a right
to secede, but they will want procedural hurdles to be insisted upon. Such hurdles
(e.g., mandatory waiting periods between referendums, mandatory waiting periods
between referendum calls and the actual vote in order to preclude secessions occurring on the basis of sudden, isolated spikes in public opinion, etc.) are precisely
those which the pragmatic argument I sketched above would tend to militate for.
Thus I think there is both a moral and a pragmatic case to make the recognition
of secessions both by the larger state and by the international community dependent
not upon the secessionist claims being able to meet the standards spelled out by
a substantive theory, but rather upon a suitably constrained procedure. Such a procedure might very well help to eradicate the deleterious effects of much unregulated
secessionist politics in the world today. What's more, such a procedure might actually be the fairest way to regulate the secessionist aspirations and claims which
have become such a troubling feature of the world-stage.
13. See John Rawls, A Theory of Justice (Cambridge, MA: Belknap Press, 1971) at 142-61.
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