Rethinking the boundaries of democratic secession: Liberalism, nationalism, and the right of minorities to self-determination

While secession has been extensively dealt in international law, particularly as a corollary of self-determination and in relation to the creation and recognition of states, it has received little attention in relation to the constitutional protection of minority rights. In this paper I propose to examine the more frequent use or invocation of secession as a means of promoting minority group rights. International law and the international community have never provided coherent guidance to respond to minority nationalistic and, specifically, secessionist challenges. The people entitled to self determination, understood as the right to political independence, have been arbitrarily identified, in different times and according to different needs, as ethnic or national communities (in the Wilsonian era) and as multiethnic peoples under colonial rule (in the post WWII period). Constitutional models regarding the management of national diversity have also failed in reconciling liberal democracy and nationalism. The ongoing quest for rights by minorities and their resistance to assimilation demonstrated the limits of the strictly individualistic conception of human rights. But federal formulas such as the Belgian one, specifically designated to permit the coexistence of a plurality of people under the same Constitution, end up by reproducing the shortcomings of an ultra-liberal system, in the sense that they result in an aggregation of strictly homogeneous sub-units, in which the elevation of the collective goals of the sub-units majority over those of sub-minorities result in the weakening of the latter. Think of French-speaking enclaves in Flanders or of Anglophones in Quebec. Secession may produce similar consequences. When the state which is born as a consequence of it is re-founded on a nationalistic basis, it structurally excludes those that do not belong to the majoritarian ethnos. In other words, secession is just one (the ultimate one), but not the only model of political separation: other models short of it, and particularly intra-state autonomy and self-government, equally challenge basic principles, such as equal respect for all minorities. My analysis seeks to demonstrate that from a substantial point of view, there is probably no solution to the tensions between nationalism and liberalism, sovereignty and self-determination. Neither available models of “constitutional coexistence” nor secession are likely to be ultimately satisfactory. Nevertheless, I conclude that the adoption of an explicit constitutional procedural approach to secession provides the best means to prevent the worse dangers and excesses