MORAL AND PRACTICAL GROUNDS FOR SECESSION –
REFLECTIONS ON THE NATION, AND THE VALUE OF BELONGING
Raphaëlle Mathieu-Bédard
Department of Political Science
McGill University, Montréal
June 2014
A thesis submitted to McGill University in partial fulfillment of the requirements of the
degree of Master of Arts
© Raphaëlle Mathieu-Bédard 2014
Mathieu-Bédard (260519422)
TABLE OF CONTENTS
ABSTRACTS ................................................................................................................ iv
ACKNOWLEDGEMENTS ................................................................................................ v
INTRODUCTION ............................................................................................................ 6
CHAPTER I – THE VALUE OF NATIONAL BELONGING, AND A MORAL THEORY OF
SECESSION ................................................................................................................ 12
Section I – Situating my Account of a Right to Secede ............................................................. 13
1.1 What is a nation? .............................................................................................................. 13
1.2 Existing theories of secession ........................................................................................... 18
1.2.1 Individual right-based theories of secession .............................................................. 19
1.2.2 Group right-based theories of secession .................................................................... 21
Section II – A Moral Group Right to Secede Based in Self-Determination and the Value of
Belonging ................................................................................................................................... 24
2.1 The moral value of the nation ........................................................................................... 24
2.1.1 The intrinsic value of the nation ................................................................................ 25
2.1.2 The instrumental value of the nation ......................................................................... 28
2.1.3 National belonging and self-determination, leading to a right to secede ................... 30
2.2 The moral claims of nations – a theory of secession ........................................................ 36
Section III - Addressing some criticisms regarding a right to secession ................................... 37
CHAPTER II – QUALIFYING THE MORAL GROUP RIGHT TO SECESSION ..................... 41
Section I – Grounds for Indigenous Claims to Self-Determination ........................................... 42
1.1 ‘Cultural incommensurability’ arguments. ....................................................................... 43
1.2 ‘Respect for identity’ (‘value of belonging’) arguments .................................................. 46
1.3 ‘Injustice-based’ arguments. ............................................................................................. 47
1.3.1
Historical injustice argument ............................................................................... 48
1.3.2
Structural injustice argument ............................................................................... 48
1.3.3
Enduring injustice argument ................................................................................ 49
Section II – Self-Determination for Wronged Nations and a Group Right to Secession ........... 51
2.1 The compatibility of ‘value of belonging’ and injustice-based self-determination
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claims ...................................................................................................................................... 51
2.2 Conditions of agency – identifying the relevant agents for moral self-determination ..... 56
2.2.1 The ‘nation condition’................................................................................................ 56
2.2.2 The ‘political relationship condition’......................................................................... 57
2.2.3 The ‘objective legitimacy’ condition ......................................................................... 57
2.2.4 The ‘subjective legitimacy’ condition ....................................................................... 61
2.3 Do injustice claims influence the choice of self-determination arrangements? .............. 63
2.4 The appropriateness of secession as a means for the self-determination for wronged
nations ..................................................................................................................................... 67
2.5 Conditions of agency – the identification of the relevant agents for moral secession ..... 69
2.5.1 ‘Acceptable costs of secession’ criterion. .................................................................. 69
2.5.2 Territoriality. .............................................................................................................. 73
Section III – The application of the moral theory of self-determination and secession to
indigenous peoples. The case of the Nisga’a in British Columbia............................................ 75
3.1 The ‘nation’ criterion ....................................................................................................... 75
3.2 The ‘political relationship’ criterion ................................................................................. 76
3.3 The ‘objective legitimacy’ criterion ................................................................................. 77
3.4 The ‘subjective legitimacy’ criterion ................................................................................ 78
3.5 The ‘acceptable costs of secession’ criterion ................................................................... 79
CHAPTER III – INSTITUTIONALIZING THE MORAL GROUP RIGHT TO SECESSION ....... 82
Section I – What Type of Moral, Group Right to Secession? .................................................... 83
1. Legalizing the moral right to secession .............................................................................. 83
Section II – Institutionalizing and Implementing a Legal Moral Group Right to Secede ......... 85
2.1 The role of legal institutionalization................................................................................. 85
2.2 Domestic institutionalization of a moral group right to secession ................................... 89
2.3 International institutionalization of the legal moral right to secession ............................. 94
2.3.1 Secession in existing modern international law. ........................................................ 94
2.3.2 The need to institutionalize the moral group right to secession in international law 96
2.2.3 Third-party mediator. ................................................................................................. 99
CONCLUSION ........................................................................................................... 104
BIBLIOGRAPHY ........................................................................................................ 106
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ABSTRACT
This thesis develops a moral theory of secession grounded in a right of nations to selfdetermination based on the intrinsic and instrumental value of the nation. Using a reconciliatory
approach to theory-building which combines the strengths of both ideal and nonideal theory, the
thesis outlines the moral grounds underlying a right to secession, identifying the agents that can
legitimately claim such a right, and examining its institutionalization in domestic and
international law. The thesis asserts that the subjective affirmation by a population of a state’s
institutions is a fundamental criterion of that state’s legitimacy to rule over the population. When
a national sub-state group within an existing state does not subjectively affirm it, and mobilizes
for secession, that national group’s right to self-determination may translate into a moral and
legal right to secede from the larger state. Such a qualified right ought to be recognized and
institutionalized in domestic and international law, providing a clear, negotiated pathway to
secession and ensuring that states fulfill their duties in allowing for secession. Such duties to
recognize and accommodate secessionist claims of alienated national groups may entail a duty of
assistance when the secessionist claims are made by a ‘wronged’ nation unjustly treated by the
state.
RÉSUMÉ
Ce mémoire développe une théorie morale de la sécession fondée sur un droit à
l’autodétermination des nations basé sur la valeur intrinsèque et instrumentale de la nation. En
utilisant une approche théorétique qui combine les avantages de la théorisation idéale et non
idéale, ce mémoire identifie d’abord les principes d’ordre moral fondamentaux qui sous-tendent
le droit moral à la sécession, puis les agents qui peuvent légitimement prétendre à un tel droit, et
il se penche enfin sur son institutionnalisation aux niveaux national et international. Ce mémoire
soutient que l’affirmation subjective d’institutions étatiques par une population constitue un
critère fondamental de la légitimité de cet État à gouverner la population. Lorsqu’un groupe
national sous-étatique au sein du pays n’appuie pas subjectivement l’État, et qu’il se mobilise
pour en faire sécession, le droit de ce groupe à l’autodétermination peut se transformer en un
droit moral et légal de faire sécession. Un tel droit conditionnel se doit d’être reconnu et
institutionnalisé au sein des droits national et international, établissant de ce fait une voie
négociée claire vers la sécession et garantissant que les États remplissent leurs devoirs en
l’autorisant. Pareils devoirs de reconnaissance et d’accommodement vis-à-vis les revendications
sécessionnistes de groupes nationaux marginalisés peuvent enfin impliquer un devoir
d’assistance lorsque les revendications sécessionnistes sont faites par une nation injustement
traitée par l’État.
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ACKNOWLEDGEMENTS
I first wish to express my profound gratitude to my thesis supervisor, Professor Catherine Lu,
who believed in this project from its early stages and encouraged me to see it through. I thank
her for her help and support throughout this degree, and especially during the writing process of
this thesis. Her sharp insight, intellectual rigor and curiosity have undoubtedly greatly improved
my work. I thank her for the opportunity of working with her, and for introducing to most of
what I know about the challenging field of political theory. I would also like to thank Professor
Jacob T. Levy and Professor Victor M. Muñiz-Fraticelli for their helpful comments and
recommendations on my thesis proposal.
I am indebted to my wonderful colleagues and sometimes officemates these past two years,
especially Sean Anderson, Jean-François Bélanger, Hillary Birch, Alice Chessé, Colin Chia,
Aleja Espinosa, Ben Foldy, Can Künüçen, June McCabe and Gülce Uzun, for enriching this
academic experience and providing much needed comic relief and comfort. I must additionally
thank Éliane Barry-Chartrand, whose friendship was my most valuable gain from my
undergraduate degree, and for forgiving my cancelling one too many gym dates.
I would also like to thank my sister, Myriam, my parents, Lyne-Andrée and Mario, for somehow
never doubting that I would succeed in school and for always being so inspiring and supportive,
as well as my extended family, especially Jacqueline, for always enquiring if I was finally done
writing.
Finally, I would like to thank Michael Faubert, for being the better half of ‘us’—most of the
time—, for being the very best part of my graduate school experience, and for making me so
hopeful for the future.
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MORAL AND PRACTICAL GROUNDS FOR SECESSION –
REFLECTIONS ON THE NATION, AND THE VALUE OF
NATIONAL BELONGING
Claims to secession have multiplied in recent decades, not only in Eastern Europe and in the
former Soviet Republics, but also in Canada, the United Kingdom, Spain, India, Eritrea and
Sudan to name a few, and such claims have often been accompanied by conflict and ethnic
violence. This already complex reality is further complicated by the emergence of de facto
secession groups, which, if they were eventually to establish themselves as legitimate states,
would encounter multiple issues regarding commencement, continuity and responsibility; would
they become the continuation of previously existing internationally recognized entities rather
than be cases of secession? Would their de facto legal order preceding international recognition
be retroactively validated? Would the new states be held accountable to treaties and agreements
entered into by the existing states from which they seceded (Crawford, 1979, 270, 392-3, 396)?
While secessionist claims present an urgent and practical challenge to contemporary states and
the international order (Buchanan, 1991, 2), the ethical and philosophical debates regarding the
morality of secession are ongoing. Additionally, domestic and international law have remained
mostly inadequate in adjudicating secessionist claims, as showcased by the unsettled case of
Kosovo, whose legal status following its unilateral secession in 2008 remains unclear
(Resolution 63/3 G.A., 1992; Advisory Opinion I.C.J. 141, 2010).
The aim of this thesis is to offer a normative and action-guiding theory of secession that will
provide a principled framework for determining the right of certain national groups to break
politically from an existing state and form their own independent political institutions. The
ambitious project of formulating a moral theory of secession originated both from a
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dissatisfaction with most existing theories of secession, and from a desire to capture the intrinsic
value of the nation, of the feeling of national belonging and what these might imply morally and
politically for group rights. Recognizing the value to be found in living under a political form
that recognizes and shows respect to one’s national identity surely has implications both
domestically and internationally. This thesis argues that recognition of this value grounds a
nation’s right to self-determination, and in some cases, may provide the justification for a moral
and legal right of the nation to secede from a larger state. Yet, the politics of secession comprise
a morally and practically complex phenomenon with far-reaching consequences, for citizens of
both the existing and newly created states. Territorial, political, economic, social and emotional
considerations must be weighed in the balance; herein lie the difficulties interwoven in the
daunting task of formulating a theory of secession.
Taking heed from Anna Stilz’s account of the value of self-determination (2014a; 2014b), I
will argue that a nation is entitled to a right to self-determination and possibly secession if it
meets three conditions: if it is engaged in sustained political mobilization for secession, if it
upholds or is capable of upholding basic justice for all, and if membership in the nation is
subjectively affirmed by its members while the national group does not subjectively affirm the
existing state. If the members of a nation do not feel national belonging towards the statist form
under which they live, it is unlikely that the nation will subjectively affirm the existing state and
its institutions. When this is the case, the intrinsic value of the nation and of national belonging,
necessary for the flourishing of the group and its members, is thwarted, challenging the
legitimacy of the jurisdictional authority of the existing state over the nation. In such a case, the
national sub-state group may be entitled to a right to secede from the existing state and to form
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its own independent political institutions in order to bridge the relational gap between the selfdetermining nation and the statist form under which authority it lives.
* * * * *
The theory-constructing approach adopted here attempts to avoid the failures of ideal and
nonideal theory taken individually by using them jointly, promoting “a normative theory that is,
at the same time, fundamentally appropriate, politically effective, and motivationally
sustainable” (Ypi, 2012, 41). This reconciliation participates in skirting the ‘irrelevance’ critique
of ideal theory, often charged with being too detached from empirics, and the ‘status quo’ bias of
nonideal theory, which, formulated on the basis that ‘concrete states of affairs’ and ‘postulated
principles’ match, favors existing principles to new and perhaps more politically effective ones –
if principles and practice do not match in nonideal theorizing, “agents lack persuasive reasons for
endorsing the principles contained in the theory as meaningful to articulate their competing
claims” (Ypi, 2012, 39, 46, 51). Recognizing these limitations as identified by Lea Ypi, but
without adopting her suggested dialectical approach, which reconciles aspects of ideal and
nonideal theory in an avant-garde conception of political agency (2012, 40), my account of a
right of nations to secede aims to transform, even minimally, the way the morality of secession is
theorized. In order to do so, this thesis will address concerns and commitments critically, yet
with an innovative and interpretative outlook focused on both ethics and empirics. Ultimately,
the objective is to clarify the fundamental normative principles and values at stake in a moral
theory of secession, to identify the existing relevant agents – nations – who can utilize or realize
these principles, and to address what other principles may be required for ensuring feasibility,
legitimacy and effective implementation of a right to secession (Ypi, 2012, 2-4).
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* * * * *
Chapter I will expose my positive argument for a right of nations to secede, grounded in the
intrinsic value of the nation, as well as its instrumental value for its members. From the value
attributed to a politically-mobilized nation that upholds basic justice and is subjectively affirmed
by its members logically follows a right for that nation to be self-determining. And, in
circumstances where the nation does not subjectively affirm the statist form under which it lives,
this right can lead to a moral right for that nation to secede from the existing state and form its
own. Thus, Chapter I will mostly be concerned with formulating a primary, group, claim-right to
secession in the realm of ideal theory, with first order normative principles “considered
unconstrained by how agency is expressed in the real world; they can be constructed with
reference to false, abstract or counterfactual circumstances, and often explicitly rely on an
intentionally distorted picture of the world” (Ypi, 2012, 38). Yet, this account of a claim-right to
secession questions the legitimacy of some current state boundaries and argues that the
prevailing presumption in favor of the territorial and political integrity of states, as their borders
are currently drawn and as jurisdictional authority is currently distributed and practiced, may be
found morally unfounded. While my argument endorses a general principle of state territorial
integrity in arguing for secession, it disputes several states’ claims to a territory and the
population that inhabits it by challenging the legitimacy of their jurisdictional claim over their
population. My account offers conditions for any jurisdictional claim over a legitimately selfdetermining nation to be valid – discussed further in Chapter II – and asserts that the subjective
affirmation by a population of a state’s institutions is a fundamental criterion of that state’s
legitimacy to rule over the population.
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On the other hand, non-ideal approaches to theorization, applied in Chapters II and III,
aim to develop principles able to guide agency in empirically contingent
circumstances [...], they take agency to play a constitutive role in the premises
that contribute to the identification of relevant principles, and consider these
principles importantly constrained by features of current social and political
practices (Ypi, 2012, 38).
As such, Chapter II will further the reflection, using insights from nonideal theorizing to
analyze how first-order normative principles can be interpreted and endorsed in political practice
(Ypi, 2012, 39). This will first be done by expanding the scope of the analysis to incorporate
‘wronged’ nations and by addressing how injustice can be an additional ground for secession and
can lead to a lack of subjective affirmation of the state on the part of unjustly treated national
sub-state groups. Additionally, the consequences that the incorporation of injustice,
compounding a moral claim for secession, entails for the duties of the existing larger state will be
discussed; Chapter II will argue that where historical or enduring injustice has prevented the
building of the institutions necessary for a ‘wronged’ nation to qualify for secession, the state,
responsible for the injustice suffered, has the additional duty to assist the nation in meeting the
criteria making it eligible for secession. It is hence in Chapter II that the relevant criteria nations
must meet in order to qualify as relevant agents for moral secession will be laid out. This is in
fact the key to appropriate, effective and sustainable theory-building as Ypi understands it:
aspects of both ideal and nonideal theory must be integrated in a coherent, normative theory,
here of secession. And, in order to be action-guiding, a theory must address both what are the
right principles underpinning moral action, and what this action requires of agents. These
conclusions will be applied to the case of the Nisga’a in British Columbia, in an attempt to
illustrate how these principles and theoretical claims can be applied in practice.
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Finally, Chapter III will argue that the benefits engendered by the institutionalization of a
right to secede in domestic and international law far outweigh the perverse incentives it gives
rise to. In fact, constitutional secession clauses, an international law provision of a moral right to
secede, as well as a neutral third-party mediator are required in order for the legitimate, legal
group right to secession to be implemented in a feasible fashion. This final chapter will therefore
address the need for the domestic and international institutionalization of a moral right to
secession in order to respond to legitimate claims to secession that have and will arise. More
specifically, most domestic constitutions as well as international law as they currently exist are
found lacking in their treatment of secessionist claims by national minorities; the current
international order’s track record in dealing with secessionist strife is messy at best, and modern
international law has so far proven too conservative and too slanted in favor of the status quo.
Ultimately, a clear legal pathway for secessionist politics is required to minimize uncertainty and
instability.
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CHAPTER I – THE VALUE OF NATIONAL BELONGING, AND A
MORAL THEORY OF SECESSION
“Wherever men become aware of their humanity and recognize man as man, they grasp human
rights and base themselves on a [...] law to which both victor and vanquished may appeal.” Karl
Jaspers, The Question of German Guilt (2000), 31.
This account of the morality of secession builds on the bold assumptions that secession is
the moral right of relevant nations, and that a moral theory of secession ought to capture the
fundamental role that the national group plays in self-identification and politics. It is only once
the intrinsic value of the nation and of national belonging is recognized along with the
instrumental value of national membership that one can appropriately attempt to theorize the
right to secede. And it is only then that domestic and international institutionalization of a right
to secession becomes possible and can create a common legal standard for all parties to
secessionist conflicts to rely on.
This first chapter will be dedicated to the fleshing out of my positive account of a right to
secede. Towards this end, I will first lay out my definition of the ‘nation’, which I understand as
an emergent, intersubjective collective of members sharing a common national identity and a
political project. Second, and following a critical review of the vast body of literature on theories
of secession, I will expose the moral grounds underlying the case made for a moral, group claimright to secession; the nation, being intrinsically and instrumentally valuable, is entitled to selfdetermination, to a public sphere in which it is fully and fairly represented, and to a state toward
which it feels national belonging. I will conclude this chapter by addressing some criticisms
generally targeted at the enterprise of theorizing secession.
* * * * *
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Section I – Situating my Account of a Right to Secede
1.1 What is a nation?
The question of secessionism is a pressing one, as claims to secession, which have
multiplied in recent decades, are turning out to be persistent and entrenched. All of these
challenge the principle of sovereignty which long reigned supreme in domestic and international
politics. Yet, there exists an important tension between the principle of self-determination and
that of territorial integrity, and while the latter has traditionally won over the former, national
identity and nationalism have become a fundamental part of the modern world because of their
ubiquity, inclusiveness, complexity, and their inter-national legitimacy in a world of states
(Smith, 1991, 143-5). They have gained immensely in political, and, arguably, moral legitimacy.
Yet, the concept of ‘nation’ first emerged somewhat incidentally at the end of the 18th century as
the spontaneous distillation of a complex ‘crossing’ of discrete historical
forces; but that, once created, they became ‘modular’, capable of being
transplanted, with varying degrees of self-consciousness, to a great variety of
social terrains, to merge and be merged with a correspondingly wide variety of
political and ideological constellations (Anderson, 2006, 4).
Indeed, “nation-ness is [has become] the most universally legitimate value in the political
life of our time” (Anderson, 2006, 3). This is not to say that the ‘nation’ is a natural kind, a
‘truth’ that can be discovered, observed and studied; I do not mean to essentialize the nation and
take it as a given of social life. The assumptions and points of departure I adopt are controversial,
and the concept of ‘nation’ is contested in itself. It is taken here as representing a socially
constructed and historically contingent kind, as having been born and as having evolved. There
exist multiple definitions of ‘nation’ in the literature, divided in two broad categories: a more
Western, civic definition that centers on a territory and the idea of a shared culture, and a more
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non-Western, ethnic definition where membership is defined by birth (Smith, 1991, 11). The
definition adopted in this thesis leans more towards the Western, civic categorization, yet doesn’t
emphasize territory or culture, but intersubjective belonging.
A nation is here understood as an emergent collective found in the intersubjective space
between members of a community that consciously understand themselves to be different from
other communities and their members, and that imagine themselves as co-members of a
meaningful group (Tamir, 1993, 8). While members of a national group may cultivate their
individuality, they inevitably, whether consciously or unconsciously, socialize and form
meaningful communal bonds collectively, as well as meaningful imaginings of their collective
future. A nation and its identity1 are the product of belief, mutual recognition, loyalty and trust
that emerge in such social interactions, explaining the strong ties between members – a “deep,
horizontal comradeship” (Miller, 1995, 22-4; Anderson, 2006, 7). A nation is then a
representation, perhaps a heuristic, for depicting the special relationship between in-group
members, and a basis for distinguishing between members and non-members. Yet, a national
group is not a static reality. Rather, for Ernest Renan, a nation is a “daily plebiscite” – a daily renegotiation of national identity and the values and interests attached to the nation (Renan quoted
in Miller, 1995, 22-3, 39). However, it would be naïve to take its social construction as making a
nation less real or influential (Anderson, 2006, 6; Tamir, 1993, 8).
Indeed, while the concept of ‘nation’ cannot be observed objectively, it is not purely
subjective, but intersubjective. An individual cannot meaningfully declare himself a nation, and
1
This national identity generally encompasses a self-determining national project, often given life through
nationalism if the nation feels slighted. While I do agree with John Breuilly that nationalism is a form of politics,
ultimately about power, I take nationalism as being the political mobilization of a nation – wherein is found a
national consciousness – towards the realization of a political project that usually represents the interests of the
group (or of its elites), and thus as involving questions of power redistribution and state power (1994, 1-2). Yet, the
nation should be the touchstone of political claims made by the nationalist movement (Breuilly, 1994, 6-7).
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cannot obtain the social experience of what the nation ‘is,’ or acquire a national identity in
isolation. On the contrary, a nation is inherently collective. A member of a nation is recognized
as such not only through self-expression of membership, but also in a process of coidentification, in the recognition of his belonging to the group by other members. It is in the
reciprocal, intersubjective understanding of co-nationals as such – as members of a collective
that share a national identity – that the meaning of the nation and what it represents is to be
found. This sets the nation apart from other types of collectives that have a perhaps more formal,
or institutionalized, membership mechanism (such as universities, political parties and labor
unions), from other collectives for which membership is perhaps more loose (such as voluntary
clubs), more individual (such as churches), and from familial ties, which are also a socially
constructed category, but based on some other unifying, affective traits than the nation (some
more objective, others intersubjective) that imply much more direct interactions.
Additionally, since the concept of ‘nation’ is a social construction and is the product of
historical development, it is entirely possible that what it represents will disappear in the future; a
post-national world is conceivable. But again, this should not take away from its salience in the
contemporary social and political context where nationalism and self-determination are
prevalent.
Furthermore, while a nation should not be anthropomorphized, equated to a unitary,
individual-like actor,2 it should be conceived as a purposeful, collective agent. Crucially, national
2
Rogers Brubaker, for example, explains that some, notably nationalists themselves, conceive of nations “as
collective individuals, capable of coherent, purposeful collective action” (Brubaker 1998, 14). Anthropomorphizing
the nation, however, runs the risk of misunderstanding the concept, which is never tangible in itself but only in its
manifestations and in its impacts on individuals, in culture and in politics, as that of an actual, observable truth. This
is mistaking categories of practice for categories of analysis (Brubaker, 1998, 15). Yet, I believe that a nation is
more than a ‘social reification’, or, as Brubaker argues, a variable representing an institutional form rather than an
entity, a practice rather than a collectivity (Brubaker, 1998, 16). As such, it should not be understood as pure fiction.
It is indeed very ‘real’, both for members and non-members. What is of main concern here is to not ‘essentialize’ the
nation, but to observe its ongoing development, influence, and to acknowledge its value (Newman, 2011, 49).
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identity should not be understood as an aggregation of the national identities of individual
members. A nation is irreducible to the individual level, which makes ignoring collective agents
an impossibility (List and Pettit, 2011, 5).3 Indeed, “although their agency depends on the
organization and behavior of individual members (…) they display patterns of collective
behavior that will be lost on us if we keep our gaze fixed at the individual level” (List and Pettit,
2001, 6). This is explained by ‘supervenience’, stipulating that a supervenient entity cannot differ
in certain properties unless its base properties differ (Newman, 2011, 37). Since collectives exist
in the present despite the fact that some members have already existed in the past, and others will
exist in the future, they cannot be reduced to their base properties. As such, the collectivity’s
existence “will supervene on the relationships amongst the members and their beliefs about these
relationships” (Newman, 2011, 37-8). For Christian List and Philip Pettit, individual members
find, often in a very spontaneous manner, an alignment between the collective’s attitudes (beliefs
and desires) and their own preferences and interests. While they may not identify or agree with
everything the national group stands for as a whole, members will find an alignment that is
satisfactory to them and allows the collective’s ‘mind’ to be instantiated in each of them (List
and Pettit, 2011, 192). From here, the nation can be discussed in first-person plural terms. Yet,
all individual members of a nation are not members to the same degree at all times; some are
considered ‘activists’, and play a crucial role in sustaining the collective and its identity, while
others are passive members and less ready to invest in the collective (List and Pettit, 2011, 193,
197). Dwight G. Newman explains that “dissenters who can still identify with the community,
though not sharing its every value, do not undermine the community’s existence” (Newman,
3
Of course, this can become quite interpretative. However, this hurdle should not discourage the attempt at
incorporating the complex reality of collective, national agents in a moral theory of secession.
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2011, 47); however, if the dissenters’ disagreement came to affect the collective’s structure, they
could eventually be excluded from membership.
In the end, “any (…) community, the members of which are conscious of themselves as
members of a [political] community, and wish to maintain the identity of their community, is a
nation” (Cobban, 1969, 107).4 While several shared objective characteristics, e.g. common
language, history, territory or common public culture,5 can define a national group, only that of
(intersubjective) national consciousness – self-awareness of its own distinctiveness vis-à-vis
others – imbued with a political project (achieved or desired) is necessary for a collective to
qualify as a nation (Tamir, 1993, 66). It is solely this mutual recognition that makes individuals
members of a nation (Gellner, 1983, 7). Nations are constantly evolving, being held together by
an active identity; co-nationals interact, take decisions collectively, achieve results, notably
political, and so on (Miller, 1995, 23-4). What makes nations distinct from other collectives,
beyond their intersubjective mechanism of membership, is that they carry in their identity a
national political project; they express a certain type of political affiliation, often historically
situated, which can vary from that of inserting themselves in a larger political community and
state to that of asserting their uniqueness towards making self-determining and secessionist
claims.6
4
I have left out ‘territorial’ from Cobban’s definition. While claims to a territory, generally a homeland, is a
necessary criterion qualifying the type of nation found to be an agent entitled to a right to secession, a nation need
not control a territory or be territorially concentrated.
5
While culture often is crucial in defining a nation, a nation is not simply its culture. Indeed, a national identity is
fundamentally multi-dimensional, and can never be reduced to a single element such as culture (or, for him, a mass,
public, culture) (Smith, 1991, 14). While I adhere to Yael Tamir’s general understanding of the nation,
fundamentally based in a ‘national consciousness’, I do not want to make the argument that it is culture which, by
holding nations together, “constitutes the essence of a right to national self-determination” (1993, 65, 8).
6
While I take the ‘nation’ as a historically contingent social construction, some take it as a ‘truth’ of social life while
others think there is no such thing as the nation. For those in the first category, the claims of this thesis, or at least its
premises that the nation is intrinsically and instrumentally valuable and ought to be self-determining, should be
relatively easy to accept. But for those who do not take the nation as existing, the argument that follows will be more
difficult to consider relevant. To be certain, the ‘nation’ is a concept that can be contested by an outsider, and
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1.2 Existing theories of secession.
The moral theory of secession to be developed here takes nations – understood as intersubjectively affirmed collectives that constitute intrinsically valuable relationships as well as
holding instrumental value for their members leading flourishing lives – as having a right to selfdetermination. This right to national self-determination is underpinned by the criterion of
subjective affirmation by the population for an existing state’s rule over a population to be
legitimate.7 My account is distanced from some current theories of secession that I view as
overly individual right-based. For example, my argument differs from ‘choice theories’ of
secession, where any territorially-defined majority of a group of individuals may secede. At the
same time, my theory can be contrasted with ‘just-cause theories’ of secession – which generally
argue for a moral right to secession only if the seceding group has either been the victim of
severe and persistent human rights violations, or if it is under colonial rule or has been annexed
against its will. Rather, my theory is akin to a ‘nationalist’ theory of secession, where a
territorially-concentrated nation may secede if it so wishes (although I do not require territorial
concentration of nations for them to be legitimate candidates for secession)8 (Norman, 2006,
183).
questioned by an insider. However, I ask these readers to take the leap with me, and to read this thesis assuming that
there is an emerging social kind called the nation. Even if it were the case that the meaningful affective ties that bind
co-nationals are founded on the false belief that they share a national identity that informs their existence, nations
and their members act as if nations existed, as if they shared such national identities. They make interested claims as
if nations had interests. They claim to derive a sense of purpose, a feeling of belonging from membership in the
purportedly existing nations. Many claim to act on behalf of something other and larger than themselves, labeled
‘nation’. As such, it appears that whether the nation is or not is mostly irrelevant to my argument. What matters is
that unless proven otherwise, and as I will attempt to demonstrate below, the nation has intrinsic value as a
supervenient, functional and purposeful entity, and it has instrumental value for its members. Any further attempt to
prove or disprove the existence of the nation as a natural or social kind – if evaluating the ‘validity’ or ‘truth’ of an
intersubjective belief is even feasible – falls beyond the scope and aims of this thesis.
7
Henceforth, unless stated otherwise, any discussion of the ‘state’ assumes a liberal, democratic regime.
8
Allen Buchanan also differentiates between ascriptive and associative nationalist theories of secession, where
‘ascriptive’ means that ascriptive characteristics such as a common culture and/or history, a common language or a
shared political aspiration exist independently of any actual political association, whereas ‘associative’ describes a
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1.2.1 Individual right-based theories of secession. Taking a collective standpoint, I position
myself in opposition to a large portion of the existing literature that bases a moral right to
secession on individual rights, and does not admit the intrinsic value of collectives.
First, Allen Buchanan’s Remedial Right Only theory of secession epitomizes an individual
right-based, just-cause theory of secession (2004). Using an “isolate and proliferate” approach
aimed at separating secession from nationality and nationalism, Buchanan proposes different
intra-state autonomy arrangements. He grounds these on a moral, justice-based conception of the
legitimacy of the state (Buchanan, 2004, 350-1, 344). Ultimately, he argues for a unilateral,
remedial-only claim-right to secession, justifiable solely in light of sustained and serious
violations, unjust annexation and violation of intrastate autonomy agreements9 (Buchanan, 2004,
335). Buchanan’s theory does not recognize the value of collectives, as they cannot be
incorporated into his conception of justice based on moral individualism. This leaves mostly
unacknowledged national lines of identification and nationalist demands believed to have just
cause (Moore, 2001, 151). Buchanan also refutes the moral value of nations by taking their
demands as either security-seeking or as resting on special obligations owed to co-nationals (he
believes this mistakenly implies that nations are cultural groups) (Buchanan, 2004, 383-4).
However, nations seek self-determination for purposes other than security, and while it is true
that nations and cultural groups are not equivalent, preserving their distinctive character remains
a valuable endeavor. Buchanan’s stance seems to partly rest on a fear of state multiplication.
primary right, nationalist theory of secession where members of the nation need not believe they share any actual
characteristics other than the desire to have their own state (1998a, 233-5). Since I define a nation as an
intersubjective understanding of membership among members, however, and that I do not believe any ascriptive
characteristic is necessary for a group to be a nation (although they may be part of the self-definition), I take my
theory as an associative nationalist theory of secession. Yet, it could also be found to incorporate ascriptive
characteristics depending on the nation.
9
Remedial rights to secession are not as restrictive as they first appear, however. They can also allow for ‘special’
rights to secession in the absence of sustained injustice, but the ‘general’ remedial right remains limited to instances
where the group has suffered injustices (Buchanan, 1998a, 232).
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However, the temporary instability due to a nation seceding might weigh less heavily in the
balance compared to an indefinite and enduring instability related to denying a politically
mobilized nation’s claim of self-determination and secession. Furthermore, there are inherent
limits to the potential expansion of secessionism. Secession demands considerable, highlycontextual efforts of mobilization, and nationalism is not an ever-aggrandizing and irrational
force, but an inherently limited political phenomenon (Moore, 1997, 908).
Christopher Heath Wellman’s choice theory of secession argues for a functional theory of
secession whenever self-determination is valued and does not conflict with the political order, in
order to protect the constituents’ basic moral rights (2005). This is based on the presumed value
of self-determination, and the recognition of the valuable functions of the state (Wellman, 2005,
1-2). But Wellman refuses to see groups as intrinsically valuable (2005, 40, 43, 55). While he
believes that groups have “no vantage point from which they can experience the realization or
thwarting of their interests” (Wellman, 2005, 44), I see nations as caring immensely whether or
not their interests are promoted.10 While this vantage point may not be formally or institutionally
recognized, collectivity exists and entails important meaningful ties, sometimes even obligations.
It seems undeniable that members of a nation, as a collectivity, care about the nation’s interests
and, if nothing else, about its symbolism, status and the identity-infused meaning it carries.
Wayne Norman’s Negotiating Nationalism comes from a moral logic of constitutionalism
and defends a liberal theory of federalism for the multinational state (2006, 214). As such, his
theory rests upon a liberal, individual-based standpoint, and argues for a secessionist clause and
an equal right to nation-building (Norman, 2006, 57, 157). Norman discusses national identity as
a characteristic of each individual that can solely be exercised within a group setting (2006, 34).
10
Tamir argues, notably, that the ‘morality of community’ ties individual self-esteem and well-being to the
successes and failures of the nation and its individual members (1993, 96).
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But while it is true that individuals internalize and personalize their national identity, and that a
national identity can indeed only be found in the context of a collectivity, this identity is also
implicitly that of a collectivity – it isn’t only found in each member at the individual level.
Moreover, Norman’s theory seems to be motivated to prevent secession; a well-designed
secession clause could allow for a secession process to be conducted according to norms of
democracy, justice and the rule of law, and discourage what he calls secessionist resentment. It
can both represent a powerful symbol of recognition for national identities and a tool to
discourage the formation of secessionist politics (Norman, 2006, 175, 180). Yet, to recognize a
certain degree of self-determination to nations in either a concrete or symbolical fashion does not
guarantee that these groups will feel any sense of belonging towards the state. While it could
facilitate the development of such ties, this is not a given – and such an arrangement seems
insufficient. Further, while the theory formulated here should not be understood as promoting
secessionism, I believe if we are to admit there can exist a moral right to secede, then a theory of
secession should remain agnostic, while addressing practical concerns and consequences of
secession (to be found in Chapters II and III).
1.2.2 Group right-based theories of secession. There are also theories of secession that do
recognize groups as valuable in themselves and attribute the right to secede to nations. However,
existing collective right-based theories of secession leave unexplored the concept of belonging
and the subjective affirmation of the state, and, like individual right-based theories, underdevelop
the action-guiding aspect of the theory. While I agree with Margaret Moore that nations should
have access to institutional recognition, the ideas of the value of belonging and subjective
affirmation of the state are mostly left implicit in her analysis. Nevertheless, she importantly
highlights that a right to self-determination and secession should be recognized for political
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national minorities. In fact, Moore sees nations as primarily political communities that can only
be accommodated through the institutional separation that nationalists seek (Frost, 2006, 80;
Moore, 2001, 73). As I will discuss further below, organized political mobilization is crucial in
legitimizing claims of secession.
The same goes for David Miller’s theory, which proposes three main characteristics of
nationality. First, national identities are part of one’s identity, not fictitious or rationally
indefensible, meaning that nations exist and are rationally defensible. Second, nations are ethical
communities within which members owe duties/special obligations to one another. Finally, a
national community living on a particular territory has a good claim to political selfdetermination; the institutional structure ought to give such a collectivity the means to
collectively decide what matters (Miller, 1995, 10-2). However, how the nation feels or affirms
the institutional structure is mostly ignored here in favor of how the structure should
accommodate nations. And, as discussed earlier, institutional accommodation of national
differences is not a guarantee that the national sub-state group will be equally represented or feel
belonging towards the state. Miller also covers three valid points of departure for arguing that
nationality carries a claim to political self-determination, but unfortunately without addressing
belonging: an argument for social justice, one for the protection of national culture, and one for
the expression of collective autonomy (the state should correspond to the popular will) (Miller,
1995, 85-90). While this last argument importantly highlights not only the role of the state in
dealing with expressions of collective autonomy, but the value such autonomy has for those who
enjoy it – that people have an interest in shaping the world in which they evolve in association
with others with whom they identity and, I would add, for that world to reflect their values and
interests –, Miller argues that the best way for this to be possible is for the state to be democratic
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in form (1995, 88-9). As it has been argued here, however, democracy is not a guarantee of
subjective affirmation of the state by the nation. Furthermore, the major issue with this theory
remains the principle of nationality, which grounds the right to secession, and is resistant to
‘special rights’ for groups above what is required by equal treatment (Miller, 2004, 154). In
itself, this does not work categorically against a right to secession. However, unless equal
treatment includes not only an equal opportunity to feel, but a perceptively equal feeling of
national belonging towards the state between the dominant group and the mobilized national substate group – which Miller does not address – inequality and unfairness remain. Granted,
however, such a feeling is particularly difficult to measure. As such, we must rely on selfexpressions of contentment, or actual mobilization as an indicator of dissatisfaction. Ultimately,
then, I question why identification to the state and national belonging, should not be part of such
equal treatment, as assuredly a good portion of the majority at least minimally identifies with the
state as a political institution.
Finally, Catherine Frost’s theory does capture the need for the state to be representative of
nations; she understands nationalism “as the claim that there needs to be a better fit between the
representational forms available to a population and a frame of reference that is currently in use
by that population” (Frost, 2006, 97). Prior to considering secession, she argues for a
rearrangement of the national frame of reference as to make it fit the reality of minorities as well
as that of the majority. Where a frame of reference cannot achieve this, it fails to meet the
population’s needs by inadequately reflecting or misrepresenting important realities (Frost, 2006,
139). Indeed, “what matters is whether the national frame of reference is helping the population
or populations involved relate to their actual circumstances and to each other” (Frost, 2006, 1278). National arrangements should overlap where frames of reference do, and if a national frame
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of reference fails to adapt, secession becomes legitimate. The question here is whether or not
representational parity is possible. Frost herself admits that a multinational frame of reference is
a very high-maintenance exercise that requires considerable efforts as well as a high level of
mutual commitment and political generosity (2006, 142), conditions rarely present in high doses
in any political context, especially if fraught with secessionist strife. Furthermore, Frost’s theory
leaves mostly implicit a nation’s subjective affirmation of the political institutions that govern it.
As in Miller’s argument, what seems to be emphasized is not so much the relationship of the
nation to the state, but that of the state to the nation. Yet, the value of national belonging or
subjective affirmation to the state, which I take as grounding the claim to secession, is inherently
dependent on intersubjective, collective and individual meaningful attachments to political
institutions.
Section II – A Moral Group Right to Secede Based in Self-Determination and the Value of
Belonging
2.1 The moral value of the nation
My account of a right to secede is thus a ‘nationalist’, group right to secession, because it
identifies the nation, its moral value and national belonging as the moral grounds justifying a
right to self-determination, which can lead to a right to secession. I use the terminology of a
‘group’, rather than ‘collective’ or ‘corporate’ right purposefully; since I take nations to be both
intrinsically and instrumentally viable, the right to secession argued for here is neither
‘collective’ and ‘corporate’ nor both. Indeed, a collective right is one that serves and protects the
interests of the individual members of the group without ascribing moral value to the group
itself, while a corporate right rather ascribe moral standing to the group as such, independently of
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the moral worth of its individual members (Ivison, 2003, 332; Jones, 1999, 83-6). On my
account, however, the nation’s moral standing lies in both the moral value of the group itself and
that of its individual members.
2.1.1 The intrinsic value of the nation. The claim that a collective carries moral worth that is not
purely linked to that of its individual members is one that is often perceived by normatively
individual-right defending theorists as not merely unsettling, but inherently mistaken. 11 Yet,
while collectivities do not have the same automatic moral status as that enjoyed by individual
human beings (Graham, 2001, 29), I take some forms of collectives, of which the nation is a
prominent example, as inherently valuable.
A nation is intrinsically valuable because it entails not only obligations and strong feelings
of attachment, but makes claims for the flourishing of its community (Moore, 2001, 27). This
common interest in the flourishing of the national group shared by the nation’s members enables
the collectivity to function in a well-ordered manner and to produce and reproduce itself over
time as a supervenient entity (Newman, 2004, 133). A nation’s moral status is derived from the
nation being a collective of people and representing an irreducible, non-individualizable national
consciousness. This national consciousness carries collective interests,12 which cannot be
reduced to individual ones, and values that make the existence of the collective worthwhile
(Newman, 2011, 47).13 This is based on a normative account of interest where morality and its
11
The intrinsic value of the nation is strongly debated in the literature. For Rodgers Brubaker, for example, ‘nation’
is simply an essentially contested concept, and its salience is generally overstated (1998, 240). Yet, as Kai Nielsen
notes, the claim to a nation’s intrinsic value “may be false, but true or false, it is not morally arbitrary. It claims that
every human being under conditions of modernity needs for her secure self-realization a sense of nationality and that
everyone so situated should have a clear sense of nationality if she is to be able to live a good life” (1998, 121-2).
12
It is important to note that while I use, notably, the idea of ‘interest’ to convey a portion of what is national
consciousness, the argument made for the value of the nation is not purely instrumental. While it is impossible to
ignore that nations act and make claims in their own interests, nationalists also make non-self-interested demands in
the name of the collectivity (Moore, 2001, 33).
13
An individual right to self-determination could not exist, according to Raz, because self-determination entails
imposing far-reaching constraints on the actions of others, and that individual interests are not sufficient cause to
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values are tied to the worth of collective identity, belonging and flourishing, one that is markedly
different from the liberal, impersonal morality where the language of interest is based on a
normatively individualist take on rationality (MacIntyre, 1995, 214). It is true that individual
interests are distinct from collective interests (although they are interdependent), and that the
nature of the relationship between the two complicates reasoning about moral agency; but while
collectives are often conceptually connected to individual members’ interests, these “connections
are non-reductive and generally indirect” (Graham, 2001, 38; Margalit and Raz, 1990, 455-6).
Ultimately, it is those irreducible collective interests that give the nation its intrinsic value; it is
through the formulation of collective interests that work towards a collectively determined
common good that the nation can express its own morality, upon which the nation’s members’
moral compass is then based. Morality, and the sense of right and wrong, is learned through, in
and from collective living (MacIntyre, 1995, 215). A nation is a salient example of such a
collective, one that produces and reproduces a particular conception of the common good with an
emphasis on the political sphere and the political interests of the nation. This conception of the
common good is beneficial to the collective, and hence to its members.
This is not to say that all collectives that have collective interests are intrinsically valuable.
Rather, to reiterate, nations are valuable because their collective interests work towards a
common project – the common good – that, when realized and protected, works towards the
flourishing of the collective, and thus of its members (Newman 2004, 61). Nations are morally
impose such a burden on others (Raz, 1986, 190, 207-9). Yet, if we recognize an individual right to selfdetermination, as it has been in international human rights law, there is a need to recognize a group right to selfdetermination as well, which I argue can lead to secession. Indeed, for Newman, collective interests, and thus group
rights, are not unrelated to individual interests, because “the collectivity’s moral existence depends on its ability to
provide a collective interest that improves the lives of its individual members” (Newman, 2011, 61). While I do not
want to reduce the moral worth of nations to instrumentalism, I take such collective interests which can fulfill the
individual interests of several members of the nation at once as existing. These similar individual interests are a
function of membership, and individual and collective interests, interdependent.
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valuable in themselves, have an ethical significance because they enable certain ethical projects,
projects that work towards the common good. This conception of common good can only be
formulated within and understood as a particular kind of social life and relationships. Further, the
social setting of the nation is also foundational of morality, in the sense that it pushes individuals
to endeavor to be moral agents through mutual recognition and responsibilization (MacIntyre,
1995, 217). Since these ethical projects can solely be formulated within the national context, as
they are the product of national membership and identity, the national collective is valuable in its
capacity to identify and realize self-advancing and fulfilling goals, especially when its achieves
political autonomy. Therefore, a nation’s intrinsic value is differentiated from the value (or lack
thereof) of other collectives with collective interests by a nation’s capacity to determine its own
destiny and to work towards irreducible national goals and plans found its identity (Miller, 1988,
659; MacIntyre, 1995, 216-7).
Moreover, while the nation is intrinsically valuable in its collective interests and its stake in
its own national flourishing and well-being, the relationship an individual has with other
members of his or her nation or with the nation itself is not exclusively mutually beneficial.
Mutual identification often comes at a cost, namely obligations and duties to co-nationals, and
even a feeling of duty felt towards the nation). As such, national membership cannot be
explained purely by mutual benefits and reciprocity – such an approach could find this choice
irrational (Miller, 1995, 62, 68). Rather, membership is imbued with feelings of loyalty and
gratitude that move beyond the reciprocity of benefits (MacIntyre, 1995, 210-1); members of
nations value the co-national relationship because a nation represents and provides them with
something more, unique to ‘nation-ness’ in this context, which is a sense of belonging as a
collective and a sense of place. The relationship an individual entertains with members of his or
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her nation can be likened to that of friendship: while generally beneficial, the value of friendship
is not limited to instrumental benefits but is extended to the non-instrumental value of mutual
identification, feeling and solidarity.
“There are objects in which the collective interest is primary, in which individual interests
are derivative or secondary” (Newman, 2004, 157). Thus, “where an object contributes
substantially to the flourishing of a community and is an object that is not easily individualizable,
we rightfully speak of it as primarily in a collective interest” (Newman, 2004, 158). The nation
and national identity are such objects, and realizing their interests allows them to work towards a
state of well-being which would otherwise be unattainable. Yet, recognizing the intrinsic value
of the nation does not mean denying individual interests and members’ stake in the flourishing of
the nation – quite the contrary.
2.1.2 The instrumental value of the nation. Indeed, a nation is also instrumentally valuable for its
members, since national identity participates in individual identification and belonging. A nation
needs to preserve its own existence, to realize its collective interests towards its well-being, to
then allow its members to participate in the governing of their own lives (Tamir, 1993, 69). A
national identity partakes in “intimate, internal functions” for individual members of
communities, notably the socialization of members as ‘nationals’ through the prism of collective
‘personality’ and its distinctive culture (Smith, 1991, 17). Nations are crucially imbued with a
particular, and salient, national identity that is constitutive of how members self-identify as
individual members embedded within a community, and in the contemporary world (Smith,
1991, 17); national identity is part and parcel of one’s own individual identity, which is partly
defined by his or her memberships in collectives, including national membership, but is also
supervenient to individual identities.
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Furthermore, “it is a truism that sometimes individual human being’s action gains its main
significance only as part of a collective action” (Graham, 2001, 22-3). The nation is found to be a
necessary point of reference for individual self-identification and understanding; individuals
become in-members once they self-identify as members and are recognized by their co-nationals
as such. Membership dispenses meaning to their lives by allowing them to feel acknowledged by
‘significant others’, giving them a sense of belonging, and providing them with a degree of selffulfillment otherwise unattainable outside the national collective (Tamir, 1993, 84).14
Hence, self-respect and prosperity of a nation for its members are “among the most vital
human interests” (Margalit and Raz, 1990, 461), since “the self-image of individuals is highly
affected by the status of their national community” (Tamir, 1993, 73). This entails that conationals, identifying membership as a source of national belonging, have a fundamental interest
in the self-determination of their nation. In fact, a right to self-determination can be derived from
the collective good membership provides to each individual member (Margalit and Raz, 1990,
462-3). Yet, this right is more than the aggregation of individual rights to self-determination or a
derivation of these at the aggregate level.15 Since the national collective is instrumental in
fostering individual well-being in addition to being intrinsically valuable by working towards
collective flourishing,16 an individual right to self-determination, intricately linked to individual
14
Nations also help define other nations and collectives through ‘othering’, identifying oneself in opposition to and
different from members of other collectives (Tamir, 1993, 8). Indeed, delineating the boundaries of a group – the in
and out-members of a nation – requires an exclusionary process grounded in a dynamic of ‘us’ versus ‘them’. While
this is inherently discriminating in some respect, some nations’ self-definitions of membership are more
exclusionary than others.
15
While an individual right to self-determination can be (but not necessarily) captured by a collective right to selfdetermination, this collective right is not reducible to individual rights to self-determination. They represent
different concepts. Here, individual self-determination is conditioned by and occurs within the context of a larger
collective.
16
While I want to avoid a discussion of the concept of “well-being”, Tamir argues that a “safe, dignified, and
flourishing national existence (…) significantly contributes to their [members of the community] well-being” (1993,
73). Other authors, such as Margalit and Raz, also refer to ‘encompassing groups’ as being important for individual
well-being, which includes individual dignity and self-respect, and spared from being subject of ridicule, hatred,
discrimination or persecution (1990, 453, 455).
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flourishing, is non-dissociable from and necessarily dependent on a group right to selfdetermination; national self-determination and secession having an irreducibly collective nature,
a right to self-determination limited to the individual level could not be meaningfully and
completely fulfilled (Newman, 2004, 160-2).
2.1.3 National belonging and self-determination, leading to a right to secede. The intrinsic and
instrumental value of the nation grounds a right to self-determination, which contributes to
collective flourishing and individuals being able to lead “satisfying lives” and enjoy “effortless
secure belonging” within their nation (Tamir, 1993, 73; Margalit and Raz, 1990, 452, 447;
Newman, 2011, 70). In the current states system, and despite its shortcomings and challenges,
the dominant and most effective instrument of collective self-determination is the ‘statist’ form.
This is first because the – liberal democratic – state has the necessary function of delivering basic
justice to its citizens, which contributes to the legitimization of the seceding unit, and second,
because it meets one of the main objectives of self-determining nations in that it should reflect
the individuals that make it up. As such, members of nations should feel belonging to the state
which governs over them, and should not have to identify with or express loyalty towards the
state if it does not fully recognize their nation (Margalit and Raz, 1990, 446-7, 457). Indeed, the
ability of a community to live an active and satisfying life, not only culturally but politically, is
not guaranteed by, but is contingent on a shared public space: “the political is an essential arena
of community life, and consequently of individual well-being” (Margalit and Raz, 1990, 457;
Tamir, 1993, 73-4).
National self-determination in that public space also means allowing nations to develop and
implement social justice according to their particular values. The nation’s valuing its political
relationship to the existing state – feeling belonging towards it – rests on the institutional form
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reflecting and respecting its identity, which includes principles of social justice particular to
every nation (Miller, 1995, 83; Tamir, 1993, 106). In addition, even if it is possible to
accommodate justice-based claims of multiple nations within one state structure, this
achievement is not necessarily sufficient for every national group to identify subjectively with
the state under which it lives. Although rights and responsibilities within a state should be
allocated in a manner that is respectful and fair towards all nationalities or nations that coexist
within a state, Margaret Moore has argued that taking nations as intrinsically valuable highlights
the non-neutrality of most liberal-democratic states when it comes to national identity and raises
the challenge of fair treatment of nations (Moore, 2001, 31-5). As James Tully has explained,
the norm of independent nation states is so predominant that the basic
concepts of contemporary constitutionalism are defined in agreement with
it. The concepts of the people, popular sovereignty, unity, equality,
recognition and democracy all tend to presuppose the unitary nation state
with a centralised and unitary system of legal and political institutions
(1995, 9).
States face an inherent difficulty in trying to achieve neutrality where a dominant nation
and/or minority nations are found. In fact, they tend to adjudicate between rival claims of the
majority and minorities, privileging a particular national identity at a cost to others; achieving
representational parity remains immensely challenging (McGarry, 1998, 215). Even when plural
states attempt to reach moral neutrality, for example, or grant special or minority rights, the
recipient groups become ‘tolerated’, the victims of reverse or positive discrimination and are
denied equal standing in the dominant, mainstream conception of society (Gray, 2004, 20).
Further undermining the legitimacy of existing states’ jurisdictional authority is the fact that their
boundaries were often drawn either morally arbitrarily, disregarding the populations inhabiting
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the territory and their aspirations, or in a concerted attempt to frustrate self-determining demands
(Moore, 1998, 140).
For Will Kymlicka, the way in which minority nations have been incorporated in the
political institutions will often justify the need for “group-differentiated rights” (1995, 117). But
nations that have minority status need not, and often do not, recognize the state as representing
their identity. Ultimately the argument of fairness is made here based on the value of belonging.
Therefore, and rejoining the previous discussion on principles of social justice, unless
representational parity is achieved, not only institutionally but also in how the national group
feels towards the state it lives in, that nation has a legitimate, moral claim to secession. This
implies that the right to secession remains even if the dominant group adopts accommodating
reforms to meet the secessionists’ demands, as these are not a guarantee of social change, and
even less a guarantee of a change in the inter-subjective belonging a nation feels or does not feel.
As Tamir notes, “national self-determination is said to be attained when certain features, unique
to the nation, find expression in the political sphere” (1993, 70-1). Margalit and Raz add that
“even a group that is not persecuted may suffer many of the ills of real persecution if it feels
persecuted” (1990, 460, my emphasis). In the absence of subjective affirmation by the nation, the
state’s claim to political authority on members of that nation is illegitimate and might have to be
relinquished for them to enjoy self-determination, a view supported by Anna Stilz’s account of a
group right to self-determination.
For Stilz, such a group right should rest on three conditions. First, the ‘political relationship’
condition states that the group making self-determining claims should have recently established a
relationship of institutionalized political cooperation. For Stilz, this could be done through
different means, be it through a state, a sub-state political unit, or through mobilization in an
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organized political movement (I will refer to this again in Chapter II – political mobilization is
taken as a condition for the nation’s agency being recognized in claiming a moral right to
secession).17 Second, the ‘objective legitimacy’ condition states that the group must have the
capacity to form a legitimate state and to protect its citizens’ basic rights. This also implies that
the (liberal) state in which the group is found should fulfill this criterion in order to have a
legitimate authority over not only this group, but all its citizens. The state’s failure to uphold
basic justice could participate in explaining and justifying the group’s rejection of the existing
statist form. Finally, and most importantly for my purposes, the ‘subjective legitimacy’ condition
stipulates that “the group’s members, by and large, do value and affirm their political
relationship” (Stilz, 2014b, 212). Members of the nation need to subjectively affirm, first, their
membership to the nation and, second, the statist form under which they live and their
participation in “the relationship of political cooperation that undergirds its institutions” (Stilz,
2014a, 19). The lack of such subjective affirmation of the constitutional order, whether based in
historical or enduring injustice, or due to other feelings of alienation and dissatisfaction,
undermines the state’s legitimacy, making it partial (most citizens do minimally affirm their
state’s institutions by willingly adapting their behavior to the state’s laws and conforming with
its institutions and cooperating with its agents, making the legal order and policy-making
effective on the state’s territory (Stilz, 2014a, 23)). Further, the subjective affirmation of the state
matters to legitimate rule because the statist institution is not an entirely separate entity from the
members of the groups that make it up, but is reproduced daily by these members in a joint
17
By emphasizing a ‘political relationship’ condition, Stilz wants to move away from a ‘nationalist’ understanding
of self-determination towards a strictly ‘political’ understanding of the type of group that is entitled to selfdetermination. Indeed, she rejects the association between culture and state that permeates the literature on
nationalist self-determination (2014a, 5). However, my intersubjectivity-based definition does not take a shared
culture as a necessary characteristic of a nation. Members can self-identify as a nation in a more political sense, by
sharing a common enterprise and endorsing a shared national project. In this sense, then, I believe Stilz’s political
understanding of self-determination and my national understanding to be unproblematically compatible.
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intentional activity, and represents them at the state level (Stilz, 2014a, 21-2). A state’s
legitimacy is therefore contingent on the objective, but also the subjective, affirmation of the
relationship of joint political action between the state and a critical and willing mass of its
citizens. The subjective affirmation of the statist form thus further enables the state to function
better, and to perform its legitimizing duties, such as upholding basic justice for all its citizens,
more effectively (Stilz 2013, 25). Such an account of a group’s right to self-determination
grounds the legitimacy of states, and calls into question the legitimacy of the jurisdictional
authority of states that do not enjoy the subjective affirmation of national sub-state groups;
failing such affirmation, the state cannot legitimately claim political independence and
jurisdictional authority on what it considers its entire territory and population.
‘Subjective affirmation’, or rather the lack thereof that creates a gap between a selfdetermining nation and the state, must be differentiated from generalized cynicism or political
apathy, from a general feeling of disaffection or from alienation from a particular political party.
The lack of subjective affirmation of the state by a national group is not aimed at a specific
agent, whether it be a particular regime or a specific government. Rather, it represents the
nation’s alienation from the statist institution as it currently exists. It represents the
dissatisfaction with the current state form and order, to which the nation does not identify or in
which it does not recognize itself, in which it cannot realize itself and its goals, notably political,
fully.
However, if we are to rely on subjective affirmation as a measure of a state’s legitimacy to
rule on the nations under its jurisdictional authority, there is a need for reliable mechanisms to
assess its salience among members of alienated nations. Indeed, national alienation, translated
into a lack of subjective affirmation of the statist form, cannot easily be expressed through voting
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in regular elections, unless there exists a party, mostly likely separatist or nationalist, that
articulates a platform addressing the institutional issue. In fact, it appears more likely that such
parties are borne out an existing feeling of alienation; alienation might more easily be first
identifiable through expressions and manifestations of sustained political mobilization, which, if
successful, will appeal to and resonate in other members of the alienated national group. Then, a
mass political mobilization towards changing the institutional order could lead to a more
institutionalized movement with its own political party/ies. As will be discussed in Chapter III,
once mobilization is entrenched and self-determining demands made known, mechanisms such
as plebiscites or referenda ought to be put in place to measure the level of alienation and the lack
of subjective affirmation of the statist form, and, eventually, determine if relevant nations
sufficiently express the desire to secede. And while it is true that the measure of such
mobilization could be tampered by general political apathy or daily compliance with the
functioning of the existing state, it appears reasonable to assume that a self-aware nation which
feels constant alienation from the state and mobilizes for secession will exhibit higher levels of
civic activism than segments of the population generally satisfied with the institutional political
order.
This conception of a collective right to self-determination then reaffirms that the state “is not
an entirely separate agency from the people who make it up. Instead, the state is reproduced by
the collective activity of its members” (Stilz, 2014b, 213). Catherine Frost also makes a similar
argument when she argues that nationalism is legitimate when it claims the need for the
representation forms made available by a state to its population to fit the frame of reference used
by that population (2006, 97). Ultimately, the condition of subjective legitimacy means that
within a multi-national state, a gap could exist between the national identity promoted by the
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state and the identity or ‘national consciousness’ of one or more of the nations living under the
jurisdiction of that state, infringing on an internal group right to self-determination. When the
members of a nation do not subjectively affirm the existing state institution, they have an
external, moral group right to self-determination, a group right to secede and form their own
political institutions.
2.2 The moral claims of nations – a theory of secession.
‘National consciousness’ includes a feeling of ‘national belonging’, held by members of a
nation that reside and evolve under an institutional form that recognizes and values their national
identity. This is the feeling of being ‘at home’. Tamir expresses this idea as “the desire to live in
a meaningful environment, where one can feel a sense of familiarity or even identification with
its rules, irrespective of whether this is indeed true or merely a comfortable illusion” (1993, 71).
Such emotional attachment, or ‘subjective affirmation’, between the state and its citizens, be they
members of the majority group or of national minorities, is an important component of that
which legitimizes the state.
I have made the case earlier for the intrinsic and instrumental value of the nation. Again, the
recognition of this value means recognizing that a nation’s members have an interest in their
nation being self-determining. ‘Nation-ness’ and the demand made on behalf of the nation for a
public sphere wherein members can self-identify as belonging, grounds a moral and collective
right to secession (Tamir, 1993, 8-9). From a group right to self-determination, then, a moral
group right to secession must be recognized for a national sub-state group whose members
subjectively affirm their membership and whose non-identification with, or alienation from, the
political institutional form in which it is located leads them to not only reject the current
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constitutional order, but to demand independent statehood. Secession from the ultimately only
partially legitimate existing state would allow the nation to build its own state, helping to bridge
the gap between national identity and political institution and enabling maximal individual wellbeing through the flourishing of the collective and its identity.18
Section III - Addressing Some Criticisms Regarding a Right to Secession
Finally, I wish to conclude this chapter by addressing some criticisms that have been
formulated against the right to secession. First of all, it is inevitable that there should remain
national minority groups within the nation that secedes, minorities which do not wish to secede.
It is also inevitable that some individuals, whether they are members of the seceding nation or
not, will oppose secession. Yet, the problem of overlapping nationalities and the lack of
homogeneity of nations should not be taken as a stark obstacle to a principle of secession. Even
if dissatisfaction would inevitably endure, it is possible, through secession, to lessen the extent of
minority dissatisfaction (nominally, that of the seceding nation) and the portion of the population
that does not feel represented by its state, whose feeling of belonging is not realized. “This is
morally and practically relevant” (Moore, 1997, 910). However, the group right to selfdetermination and secession does not necessarily trump the individual right to self-determination.
It may be that the collective claim to self-determination does not outweigh individual claims; if
minority interests are sufficient to ground a duty on the part of the collective, those interests
amount to individual rights that ought to be protected (Newman, 2004, 143). One such case, as it
will be discussed further in Chapter II, is when the seceding unit cannot uphold the basic human
18
The argument for a moral right group-based right to secede should not be understood as an endorsement of any
particular secessionist movement. Rather, this constitutes an attempt at formulating a normative theory that offers a
framework for navigating the complex issues that arise when states are confronted to secessionist claims.
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rights of all its citizens, whether they are members of the nation or not. A seceding nation that
cannot, or does not, ensure basic justice for all, will not meet the necessary criteria that would
make it a legitimate candidate for secession. The duty to uphold the respect of basic human
rights for all individuals would thus trump the group right to secession.
Second of all, while the popular argument amongst opponents to secession which expresses
fear that a right to secede would lead to a proliferation of small states and possible anarchy is not
unfounded, it seems to take consequentialist arguments as an absolute value. Moreover, it does
not take into consideration the argument made here. Rather than assuming the legitimacy of the
existing international order, which generally leads to a hostile stance towards secession, one
must assess states for what they are, and address secessionist claims fairly; nations do not secede
without reason (Nielsen, 1998, 112). If the existing state structure and boundaries are founds
morally lacking, and if we accept the claim made here, and developed further in Chapter II, that
the legitimacy of most existing liberal democratic states is partial, it is unclear that the fear of
proliferation of states should be given priority and allowed to prevent the moral progress that the
recognition of a group right to secession could engender. Such a right could allow for a
controlled, morally just reform of the constitutional order and redrawing of the world map, and
participate in increasing group, and individual, flourishing and belonging. Additionally, as will
be exposed at length in the following chapter, stringent criteria should be imposed in attempting
to identify the relevant agents entitled to a moral right to secede, automatically limiting the threat
of the multiplicity of states.
Furthermore, nationalism is, as a political phenomenon, inherently limited, and is not as
threatening as some make it to be; “nationalism is not always, or essentially, state-seeking”
(Brubaker, 1998, 237). It is not because nationalists prefer their nation over others that their
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behavior is irrational and perpetually aggrandizing. Just as one’s individualism ends where
someone else’s begins, nationalist claims are legitimate vis-à-vis others only to the extent that
they are restricted to a nation and its homeland (there needs to be a credible and legitimate
territorial claim made), and recognize the same rights to self-determination of other nations
(Moore, 1997, 908). In addition, once nationalists have obtained the recognition and selfdetermination they seek, once they have obtained a public sphere in which they can freely and
completely express their national identity, once they obtain their ‘home’, they supposedly have
accomplished their goal and have no further justifiable externalizing claims of separation or
extension (although they might have an internal, domestic purpose in stimulating nation-building
and political participation).
Finally, in reply to those who, again, fear the possible state break-down and multiplication
effect of secession, it seems quite plausible that allowing dissatisfied nations to secede could
allow for a certain level of stability otherwise difficult to obtain. Even if it might be considered
‘giving in’ to dissenters by some (although the moral foundations behind such a feeling remain
to be demonstrated), providing secessionist nationalists with self-determination and a state of
their own would dial down crises or unstable conflicts. It would indeed seem that evening out the
playing field by providing, as much as morally and feasibly possible, equal self-determination
and representation in the public sphere could stabilize the game, and that “the equal political
recognition of distinct nations might facilitate international cooperation and obedience to
international norms” (Moore, 1997, 908).
* * * * *
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Karl Jaspers’s quotation inserted at the beginning of this chapter echoes what is needed for
the moral group right to secession argued for here to be recognized; there is a need for us to
concern ourselves with the recognition of, first, the intrinsic and instrumental value found in
nations, and second, of their right to self-determination, to live under a statist form where they
feel at home and under a constitutional order which they subjectively affirm. Once nations are
recognized for what they are to their members, once we have come to grasp that the selfdetermination of nations is a moral group right which can lead to a right to secession, both the
existing state and the secessionist unit can tackle the remaining difficulties of implementing such
a right and can more easily address and deal with the problematic reality of secessionist strife.
While secessionism remains a highly complex issue, and that the implementation of a right
to secede raises several difficulties addressed in subsequent chapters, it is our moral duty, under
the norms expressed by a group right to secession, to attempt to make its implementation feasible
when necessary. For this to occur, and in keeping with Ypi’s understanding of non-ideal theory,
which aims to determine principles to guide agency while accounting for social and political
conditions and allows to identify who is responsible for realizing the relevant normative
principles of ideal theory in practice (Ypi, 2012, 38), some qualifications must be added on to
this definition of the right to secede. It is imperative to identify several conditions of agency –
the relevant agents entitled to a moral right to secession – and to consider the practical
considerations of secession for limits to this right to secede to be delineated. Let us not forget
that this theory aims at determining moral criteria for secession from which new states could
legitimately, morally and practically be established, making it both normatively fundamental and
action-guiding. Such considerations will be addressed in Chapter II.
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CHAPTER II – QUALIFYING THE MORAL GROUP RIGHT TO
SECESSION
“Notre lutte ne peut être que victorieuse. On ne tient pas longtemps dans la misère et le mépris
un people en réveil.” Manifeste d’octobre 1970, Front de Libération du Québec.
A right to secession has so far been grounded on a right to self-determination, which is
based on the value of national belonging. A group, in particular a nation, that has a right to selfdetermination may have a moral right to secede from a larger state in which it lives if it does not
subjectively affirm it. My account therefore does not rely on an injustice-based argument, and
does not specifically address the claims of ‘wronged nations’ (nations victims of injustice
perpetrated by the state) – although wronged groups could make a claim to self-determination
and secession under the moral right argued for here. Furthermore, demands for selfdetermination of wronged groups, notably those of indigenous peoples, can be made on different
grounds and aim to obtain different self-determining outcomes; it is not a priori obvious that
they can lead to a moral right to secede. For example, one of the main criticisms of granting
political autonomy to minorities, whether group-targeted intra-state arrangements or the creation
of a new sovereign state, is the possibility that these newly acquired autonomous powers might
be used to target and discriminate internal minorities (Moore, 2005, 272). As such, selfdetermination in the form of self-government and/or secession does not necessarily appear
appropriate, for nations, ‘wronged’ or not, who would, through self-determination, assert their
juridical powers in a potentially oppressive or unjust manner on other minorities such as
indigenous peoples. Moreover, it is as of yet unclear what type of group, beyond it being a
nation, is a morally relevant candidate for self-determination, let alone secession. The aim of this
chapter is to address such considerations.
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Following a brief review of existing justifications for indigenous self-determination claims, I
will assess whether a ‘national identity’ argument, based in the value of belonging, is appropriate
to ground the self-determination claims of ‘wronged groups’. I will focus on indigenous selfdetermination demands, which, beyond being some of the most common and morally complex
claims to self-determination on the part of wronged groups, I take as representing accurately the
particular considerations that need to be taken into account in analyzing the self-determination
and secession of unjustly treated nations. I will explore whether the ‘value of belonging’
argument is insufficient if it does not include an argument based in the injustice suffered by
wronged groups, and will conclude that these groups may best ground a moral claim for selfdetermination in an argument for the value of belonging, compounded by an injustice-based
argument. The claim based in injustice leads the partially legitimate state to bear added
responsibility in assisting wronged nations to qualify for secession (if they so wish). I will
discuss the conditions of agency that make an agent qualify for moral self-determination first,
and secession second, and will then analyze whether secession is an appropriate form of selfdetermination for wronged nations. Finally, I will conclude the chapter by using the case study of
the Nisga’a in British Columbia to assess these moral theoretical claims in practice, with
sensitivity to issues of legitimacy, feasibility and stability (Ypi, 2012, 141).
* * * * *
Section I – Grounds for Indigenous Claims to Self-Determination.
There exist numerous grounds on which indigenous peoples have claimed a right to selfdetermination. Margaret Moore has argued that these justifications can be regrouped into three
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broad categories: ‘cultural incommensurability’, ‘respect for identity’ and ‘injustice-based’
arguments (Moore, 2005, 274).
1.1 ‘Cultural incommensurability’ arguments.
The first of these categories, the ‘cultural incommensurability argument’ category,
concludes that only the relevant group – here the nation – is qualified to establish rules on the
basis of its own norms, since there is a general impossibility to find neutral grounds to assess
normative claims between groups living in the same polity (Moore, 2005, 275). In this moral
relativist view, such as that of James Tully, cultures are seen as overlapping, interactive and
internally negotiated, making the experience of difference or ‘otherness’ internal, and relative
(1995, 10, 13). Without a clear understanding of the middle ground on which it is possible for
cultures to mutual recognize each other, any ‘just’ conception of ‘common’ constitutionalism,
where “criss-crossing and contested narratives through which citizens participate in and identify
with their associations” are found, appears impossible (Tully, 1995, 183). An intercultural
dialogue is necessary to enable different cultures to reach an agreement concerning a
constitutional order; the terms of such mutual recognition cannot be reached unilaterally, as
recognition can only be based on bridging incommensurable internal self-understandings (Tully,
1995, 14, 29).
Moore offers several rebuttals to arguments such as Tully’s. First, as argued by Judith
Shklar, one may be hard-pressed to understand another cultural group’s morals and values, or to
assess what constitutes ‘justice’ or ‘good’ in the sense of maximizing well-being (or what
constitutes the ‘good life’ as discussed by John Gray (2004)). Indeed, focusing on justice limits
the domain of what injustice is to ‘absence of justice’, and can even encourage the reproduction
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of unjust habits. In fact, it is more easily possible to identify ‘evil’ or ‘injustice’ (Shklar, 1990,
15, 21, 26). This facilitates a more objective adjudication between, or at least evaluation of,
different cultural norms held by different groups. In truth, it might be that some simply are
unacceptable, trumping any incommensurability argument for the right of groups to hold any
belief or norm because it is theirs. The necessary benchmark appears to be that conditions of
equal respect and achievement of equal status need to exist for all communities, a benchmark
which can be upheld through the respect of basic human rights (Moore, 2005, 276-7; Rawls,
1999, 79-80).
Second, moral relativism raises the important question of the cultural homogeneity of
groups. Since they, including nations, are not monoliths, it is important to consider who are
representing groups, and how representative the cultural understanding they defend is of that of
all the groups’ members (Moore, 2005, 278). Such cultural understandings of norms can hardly
be perfectly representative, and the imposition of what is understood as a group’s cultural
understanding (perhaps mostly held by elites) to its members must be avoided. As such, cultural
norms in themselves, and their protection, at the very least do not appear sufficient in grounding
a right to self-determination for indigenous peoples.
Furthermore, while the argument I have made for the intrinsic value of the nation includes a
‘moral particularist’ claim,19 as defended by David Miller among others, the understanding of the
issue as articulated as cultural incommensurability is problematic. Indeed, it seems to imply that
a national sub-state group could not possibly subjectively affirm the state under which it lives if
it did not design it itself on the basis of its own norms (or at least participate in designing it
according to its norms), or if the state did not explicitly accommodate its particularist norms. I
19
As explained in Chapter I, the nation’s valuing its political relationship to the existing state – feeling belonging
towards it – rests on the institutional form reflecting and respecting its identity in meaningful ways, which includes
principles of social justice particular to every nation (Miller, 1995, 83; Tamir, 1993, 106).
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take this as a non-sequitur, since nothing is to prevent a nation living in such a state not to
mobilize for self-determination or secession, not to subjectively affirm the state despite its own
cultural and moral norms not being promulgated at the state-level. There might be common
cultural and moral grounds on which approval can converge and on which the polity can be built
without it including particularist norms; a group could, say, subjectively affirm the idea of the
state and its structure, and so wish to remain citizens of said state, without subjectively affirming
its specific, existing constitutional order, which might reflect deep partiality toward the dominant
culture against that of a minority.
One such example of a plural society where “fellow feelings can exist (…) among people
who speak different languages and practice different religions” is Switzerland (Schmid, 1981,
156); the German, French and Italian Swiss collectively identity as Swiss citizens before turning
to religious, linguistic or cantonal identities (Schmid, 1981, 93). It has been argued that
Switzerland, unlike other multicultural countries, is characterized by a set of overarching and
cross-cutting common values, a ‘civic culture’ that underlies linguistic and religious differences.
As such, it has often been categorized as a ‘political nation’, embodying what might be referred
to as ‘constitutional patriotism’, where value is put on political values and the participation in a
common political process (Habermas, 1998, 408; Eugster and Strijbis, 2011, 394). There exist
common attachments among the Swiss pertaining to what the Swiss state represents; to a shared
history, direct democracy, communal or cantonal autonomy and to the commitment to neutrality
and federalism (Schmid, 1981, 112, 116, 118; Eugster and Strijbis, 2011, 394; Kriesi and
Trechsel, 2008, 11). Others have argued that Switzerland is both a political and cultural nation
rather than exclusively political, but that “the essence of Swiss cultural identity is pride in
linguistic pluralism and regional diversity” (Eugster and Strijbis, 2011, 395). What appears to
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matter most the Swiss, then, is belonging to the Swiss nation, rather than the ‘Swiss German’ or
‘Swiss French’ ‘nations’.
1.2 ‘Respect for identity’ (‘value of belonging’) arguments.
The second category of arguments for grounding indigenous self-determination are those
based on the interest a group has in the respect and recognition of its identity, and in the public
sphere’s affirmation of that identity (Moore, 2005, 279). It is in this category that my theory of
secession is found. Moore argues that this type of argument is problematic, especially for internal
minorities whose identity is often not expressed and represented in the public sphere in the same
way as that of the newly self-determining group (2005, 280). The question thus becomes whether
or not such a right to national self-determination can override that of any internal minority
remaining within the territory on which the nation is given jurisdictional authority. I argued in
Chapter I that it is almost inevitable that individuals within a mobilized nation will disagree with
the voice of the majority – their individual right to self-determination would here be subjected to
the group right to self-determination, granted that the collective ensures basic justice for all. The
fact that the collective is a supervenient entity to its individual members does not entail that all
individual members agree on all things at all times (Newman, 2011, 37-8). Rather, the role that
individual members play in the collective often changes over time; some members can be
considered ‘activists’ at one point, and ‘dissenters’ at another (List and Pettit, 2011, 193, 197;
Newman, 2011, 47). It is only when dissenters disturb and jeopardize the group’s structure that
they can be excluded from membership. This perhaps controversial precedence of a collective
right to self-determination on individual rights to self-determination can be justified as an
attempt to maximize well-being and belonging. As Moore argues, such a concern should “be
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weighed against the problem of states ruling without the consent of the people, and denying
legitimate feelings of communal identity” (1997, 909). Similarly, it is possible for dissent to
come from individuals or groups that are not members of the newly self-determining nation.
Again, however, their claims need to be weighed against those of the majority in an effort to
maximize belonging. While they are entitled to their own individual, and perhaps group, right to
self-determination, meaning they might also be entitled to intrastate self-governing structures or
to secession if they meet the relevant criteria, their individual rights to be self-determining do not
trump that of the self-determining national collective, as long as basic justice is upheld. The
objection regarding the protection of basic human rights for internal minorities will be addressed
in a subsequent section. Let us agree for now that self-determination should not occur at the
expense of basic justice, entailing the respect of basic human rights in a Rawlsian sense (more on
this below).
This first issue of the lack of heterogeneity of groups, including nations, regarding identitybased argument for self-determination ties into a second criticism: that it fails to address why a
national (or cultural) identity is special and deserves self-determination over gender, sexual
orientation or religious identities, since individuals associate with and feel belonging towards a
multiplicity of identities (Moore, 2005, 282). As I will argue below, I believe the answer to this
question lies in the mobilization of the nation for self-determination, social cohesion and in the
political embodiment of the project that national mobilization carries.
1.3 ‘Injustice-based’ arguments.
This third category of grounds for self-determination, on which wronged groups such as
indigenous peoples can base their self-determining claims, concerns the injustices these groups
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have suffered and continue to suffer. This type of argument is grounded on the moral authority a
group may enjoy on the jurisdiction of its members’ lives and the “conditions of their collective
existence”, and on the rights of the group, as well as on the duties of the state in which it lives,
that are borne out of the unjust violations it is a victim of. Such an argument questions the
legitimacy of the liberal state to exercise jurisdictional authority over indigenous peoples
(Moore, 2005, 282-3). This makes it clear that there might be a need to move beyond the nonindigenous-dominated state sovereignty model in order for indigenous groups to enjoy just, or at
the very least, more just, self-determination (Moore, 2005, 289-91).
1.3.1 Historical injustice argument: According to Lea Ypi, colonialism, and thus the fate of
indigenous peoples,20 is wrong because it creates and upholds political associations and
institutions that prevent their members from enjoying the same recognition as the majority in the
eyes of the state by instituting unequal and unilateral terms of cooperation. Prerogatives that
were granted to colonizers were denied to indigenous peoples, setting up an unjust relationship
by “departing from an ideal of equal and reciprocal terms of political associations” (Ypi, 2013,
167). This, in light of the value of belonging I argue for, can easily prevent wronged nations
from feeling ‘at home’, from feeling as though they belong; these groups are often severely
alienated from the statist form that rules over them. As such, new morally acceptable political
associations are needed to treat these (territorially distinct) political agents justly (Ypi, 2013,
158, 163).
1.3.2 Structural injustice argument: According to Catherine Lu, the concept of structural
injustice helps understand colonial injustices through a larger perspective by capturing how the
international society of states is partly responsible for unjust international social structures by
20
It has been argued that indigenous peoples are still to this day suffering from colonization under most liberal states
(Asch, 1984, 34; Young, 2007, 31, 60).
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enacting a colonial international system, while raising questions about the responsibility of and
among colonized peoples (2011, 262-4). Adequate political responsibility needs to be met, and
unjust structures reformed in an appropriate manner for victims of the colonial system (including
indigenous peoples) to “achieve the necessary conditions for effective political and social
agency” (Lu, 2011, 264). Lu thus makes a prescriptive argument about the duties that may befall
states that have participated, and still do participate to this day, in colonial-type injustices, to
reform the unjust structures they perpetuate and enter in new and more just institutional
relationships with ‘colonized peoples’. Such an understanding of duties is echoed in Jeff
Spinner-Halev’s ‘enduring injustice’ argument.
1.3.3 Enduring injustice argument: Spinner-Halev argues that indigenous peoples, as wronged
groups, suffer from ‘enduring injustice’, a historical injustice that continues on to the present,
and that the liberal solutions to such harms are insufficient (notably, they don’t factor in
collective memory) (2007, 578-9). Enduring injustice can notably foster feelings of mistrust
towards the state seen as the perpetrator and enforcer of injustices, which can not only lead to
indigenous groups feeling alienated from the state under which jurisdictional authority they live,
but can make any attempt at redressing such injustices, and any negotiation process that would
follow, an arduous task (Spinner-Halev, 2007, 585). Mistrust can easily lead to a lack of
subjective affirmation of the state, and even dissatisfaction with any self-governing arrangement
within the post-Westphalian model.21 Ultimately, Spinner-Halev argues that the “members of a
political community have a responsibility toward one another to live in conditions of justice (or
at least decency), or that the government they share is responsible to ensure justice” (2007, 588);
21
Just-cause theories of secession, or arguments for self-determination based on injustices, adopt a post-Westphalian
conception of state sovereignty, where the state’s legitimacy is contingent on the just (‘liberal’) treatment of its
citizens (rather than inalienable and dependent on a monarch), and the territory seen as belonging to the people
(Catala, 2013, 76).
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there might exist a duty on behalf of the state to negotiate with wronged groups and participate in
designing just, self-determining conditions that might entail different autonomy arrangements,
perhaps falling short of, or including, secession.
Such injustice-based arguments are very convincing. One would be hard-pressed to make
the case that indigenous peoples, for example, are not suffering from an injustice that is
historical, structural and enduring. It also becomes apparent that indigenous peoples, and
wronged groups more generally, that do not subjectively affirm the constitutional order nor the
state in which they live, whether for injustice-based or lack of belonging-based reasons, might
require self-determination in the form of an alternative to the liberal democratic state that has so
far been put forward in my argument. While it might be true that, in the world of states in which
we live, the state is often the preferred vehicle for self-determination in secessionist demands,
indigenous peoples may not want to, or may not be able to, become such members of the
community of states – for many tribes, sovereignty cannot mean the same as it does for ‘nationstates’, for the simple reason that many are too small to exercise such a form of sovereignty fully
(Spinner-Halev, 2012, 142). In fact, indigenous peoples often do not make self-determination
claims in the form of secessionist demands. Taking them into consideration thus forces a reevaluation of the type of self-determining arrangements that need to be considered in a moral
theory of secession. As Spinner-Halev warns, not only might it be important to question the
legitimacy of the liberal state’s rule over wronged groups, but taking an ‘enduring injustice’
approach also questions the legitimacy of liberal justice itself in correcting those wrongs (2012,
138, 180).22 Looking at the claims made by indigenous peoples expands the scope of the analysis
22
Ultimately, he argues for a reduction of the liberal state’s involvement in the governing structures of wronged
groups (Spinner-Halev, 2012, 166).
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altogether; it is not only the form of self-determination considered that might need to be
broadened, but the principled bases grounding self-determination as well.
Section II – Self-Determination for Wronged Nations and a Group Right to Secession
2.1 The compatibility of ‘value of belonging’ and injustice-based self-determination claims
The argument made for a collective right to secession in Chapter I is a primary, not a
remedial, right;23 although the legitimacy of existing liberal democratic states is questioned, it is
grounded in the intrinsic and instrumental value of the nation for the well-being of their
members, and does not require that severe and enduring injustices have been perpetrated against
the seceding national group in order for that nation to legitimately be entitled to the right to form
its own sovereign state.24 I have even argued that such a right still holds in situations where the
existing state has taken significant measures to appease the seceding nation, and may even have
offered and recognized official representational parity in the institutional and public spheres.
This might appear as prejudicial to the state. However, “identity-based conceptions [of selfdetermination] challenge established boundaries and existing political entities” (Waldron, 2010,
398); my argument questions the full legitimacy of the authority that the state exercises over the
23
On the contrary, my theory of a collective moral right to secession should in part be seen as a critique of remedialonly rights to secession.
24
While this is the traditional and widely accepted definition of an injustice-based/remedial right to secession
(Buchanan, 1997, 35), Spinner-Halev takes a broader approach and discusses a second type of injustice which can
ground claims to self-determination, which “encompasses the injustice of ‘not being at home in the world’ – which
means not being treated with equal or even decent regard by the institutions of the state and many fellow citizens, or
it can mean that one’s group is treated as a ward of the state, that the group’s life is directed by others” (2012, 182).
This is closer to the ‘value of belonging’ argument already made here. However, Spinner-Halev’s is mostly limited
to alienation resulting from ‘radical injustice’ that has become enduring, and seems to emphasize the state’s
institutions and the state’s behavior towards the wronged group rather than the subjective affirmation that the group
may or may not feel towards the state. The type of alienation, or absence of ‘feeling at home’, in my account is
broader; a group may not feel at home for varied reasons, whether due to historical injustice, some structural
enduring injustice, or it could be due to more subjective reasons, and not be based on any injustice or structural fault
at all.
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mobilized nation due to a lack of subjective affirmation of the state by that national group,
whether it is indigenous or not. Official recognition and representational parity may offer
equality of opportunity, but cannot guarantee equality of outcome and the fostering of belonging.
It may well be that despite such measures, a majority of members of the mobilized nation still
feels alienated from the state and remains mobilized for secession.25 In such a case, the nation is
still entitled to a moral right to secede based on the value found in belonging and a lack of
legitimacy of the existing state, which participates in preventing the alienated group from finding
its place in the world; “states need reminding that they did not always possess sovereignty over
all the peoples and territories they currently claim, and that addressing the original sovereignty of
sub-state national groups is unfinished moral business” (Kymlicka, 2010, 384).26
This argument for self-determination and secession does not, however, deny nor subsume an
injustice-based argument for self-determination and potential secession. ‘Value of belonging’
and injustice-based arguments for self-determination appear not only compatible, but
complementary where appropriate; I do not deny that there exists a strong case for indigenous
peoples, as well as other nations having suffered injustice,27 to ground self-determination
demands in such an argument. In fact, it appears that neglecting to include injustice as a
25
An argument might certainly be formulated that such institutions and representational parity can participate in
fostering belonging over time. It might be the case that, if such accommodative steps are taken by the existing state
towards the nation, a determined length of time must be allowed to pass before the nation can voice its choice to
secede or not. However, it might also be difficult to make the case, especially if it is the case that there is a lack of
legitimacy of the state, that a few generations must suffer alienation and be prevented from feeling at home in the
world before secession can morally be granted.
26
Contrary to just-cause theories (which sometimes allow for non-remedial secession when the existing state
consents), this moral theory of secession does not view political legitimacy (seen as upholding basic justice for its
citizens) as a sufficient condition to counter secessionist claims (Catala, 2013, 75-6), since the argument made for
secession does not directly rely on the legitimacy of the existing state, but rather on the feeling of belonging and the
lack of subjective affirmation of the state which then undermines the legitimacy of the state understood in a broader
sense.
27
It is important to note that while the argument made here focuses on indigenous self-determination, an injusticebased claim to self-determination extends beyond indigenous groups to any nation that fits the required criteria (laid
out a little further) and has endured injustices at the hand of the state. Similarly, the moral theory of secession
formulated here already extends to these relevant, ‘wronged’ nations: these nations enjoy a moral right to selfdetermination prior to any injustice-based argument that may compound these groups’ self-determining claims.
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principled ground for self-determination may fail to capture at least a portion of the grievances
harbored by indigenous peoples, among others, towards the state under which authority they live
– although their grievances need not be the result of injustice. While it is probable that most
indigenous peoples do not subjectively affirm the state or at least the structures that the liberal
state has in many ways imposed on them, and this, whether the lack of affirmation is the result of
past or current injustice or any other form of alienation, an injustice-based argument might not
only be added to, but might compound and strengthen ‘value of belonging’ indigenous claims for
self-determination. I do not mean here ‘strengthen’ in any sense which would make a wronged
nation’s claims appear superior or more pressing than those of any other relevant nation. Any
legitimate case for self-determination is valuable and relevant. Rather, neglecting to incorporate
injustices as a principled grounding of the argument may obscure additional responsibilities and
duties which may befall the state when addressing self-deterministic and secessionist claims of
groups who have suffered grave injustices.
Moreover, the inclusion of an injustice argument has symbolic bearings, as it signifies the
official recognition of the wrongs committed by the state unto indigenous populations.28 As
Spinner-Halev notes, “acknowledging the harm will not change the physical living conditions of
the group, but it will sustain group members’ dignity” (2007, 579). Recognition is necessary
because of the weight injustices can have on a group’s collective memory; it is needed to mend
the relationship of mistrust between the group and the state and to put an end to harmful
28
The final report from the Canadian Royal Commission on Aboriginal Peoples (RCAP) notably notes that the
principle of ‘recognition’ is crucial in moving forward with the state-aboriginal peoples’ relationship and ending the
‘colonization’ of aboriginal peoples: “the principle of mutual recognition calls on non-aboriginal Canadians to
recognize that aboriginal people are the original inhabitants and caretakers of this land and have distinctive rights
and responsibilities flowing from that status. It calls on Aboriginal people to accept that non-Aboriginal people are
also of this land now, by birth and by adoption, with strong ties of love and loyalty. It requires both sides to
acknowledge and relate to one another as partners, respecting each other’s laws and institutions and co-operating for
mutual benefit” (RCAP, 1996).
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relationships and institutions passed down from generation to generation (Spinner-Halev, 2007,
580, 584-5).
Additionally, for wronged groups to focus their claim to self-determination solely in an
injustice-based argument would neglect to incorporate, beyond any goal of reparation for past
and present wrongdoing, the intrinsic and instrumental value found in their collective, which
could, if they fit the required relevant criteria, grant them a moral right to self-determination in
the absence of injustice. To formulate a theory of self-determination solely based in injustice
would unnecessarily circumscribe the scope of the argument to oppressed groups and make it
remedial, which I consider a too-narrow conception of self-determination and wish to avoid in
favor of a primary moral right to secession. Rather, wronged nations such as indigenous peoples
can best ground a claim to self-determination in a ‘value of belonging’ argument compounded by
a claim grounded in injustice.
The consequences devolving from this combination concern additional duties and
responsibilities states bear towards mobilized nations that are victims of injustice. Any state
which harbors and exercises (potentially/partially illegitimate) authority over a group which is
entitled to a legitimate moral right to self-determination, and possibly secession, has important
responsibilities and duties to recognize such a right and to participate to its application in
practice, to accommodate secessionist claims of alienated groups. Notably, such a state needs to
negotiate with the self-determining group in order to determine how the chosen self-determining
arrangement will be implemented, how control of resources and land will be divided, and so on.
Such practical and legal considerations will be addressed in more depth below and in Chapter III.
Nevertheless, in light of the injustice-based argument for self-determination, it appears that the
state, as it has been argued by Spinner-Halev among others, as well as the international
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community of states, as argued by Lu (2011),29 do bear an ‘added’ responsibility, notably
historical, for enacting and upholding unjust structures, as well as entertaining unjust
relationships with groups such as indigenous peoples.
Spinner-Halev’s argument follows from the observation that when the liberal state fails to
treat all of its citizens with equal and decent regard, it cannot enjoy full legitimacy over the
wronged group, because the moral weight of the past, continuing in the present, matters over
questions of state legitimacy (2012, 129). This does not make the state itself entirely illegitimate,
as it still enjoys legitimate authority and sovereignty over the majority of its citizens, but
highlights the possibility of partial legitimacy, since its authority could not legitimately extend to
the wronged minority (Spinner-Halev, 2012, 133). Indigenous groups’ self-determination was
clearly violated; these groups were self-governing communities before being forcibly
incorporated in the actual state system (Moore, 2003, 91). Here, the argument rejoins mine
regarding state partial legitimacy despite the extension of equal rights, or even of accommodative
measures to the ‘wronged’ group; “the state is partially legitimate when a group of citizens find
themselves to be victims of an enduring injustice, even if their formal rights are upheld”, argued
Spinner-Halev (2012, 135). The strength of such a claim with regards to nations that have not
suffered from enduring injustices such as the colonialism endured by indigenous peoples will
depend on how convincing my argument for a right to self-determination and secession made in
the first chapter is found. I have made the case, however, that a state that lacks the subjective
affirmation of a mobilized nation may have to give up its exclusive authoritative control over
that portion of their citizenry (and potentially territory) for it to enjoy full self-determination. As
such, whether it is from an argument grounded in the value of belonging and/or in injustice, the
29
The argument made in this chapter will however focus on the responsibilities of the state. The international
community and its duties will be addressed in Chapter III.
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state’s legitimacy to exercise its authority over the national sub-state group making selfdeterministic claims may be found lacking. When this is the case, different forms of selfdetermination, including secession, may be found to be appropriate alternatives, and the existing
state bears the responsibility to negotiate such alternatives with the self-determining group. What
is particular to the injustice-based argument, however, it that an additional duty of assistance
befalls the state as the responsible agent for the injustices committed, and leads to the state
having to help and assist self-determination of wronged groups further in order to repair and
redress such injustices.
2.2 Conditions of agency – identifying the relevant agents for moral self-determination
In keeping with Lea Ypi’s theoretical approach reconciling ideal and nonideal theory and
having identified the ideal theoretical moral grounds for self-determination as well as having
concluded that added responsibilities of the state may devolve from the injustice-based
argument, it is now necessary to turn to non-ideal theory and explore which groups can be
entitled to internal self-determination.
2.2.1 The ‘nation’ condition. I identified in Chapter I the ‘nation’ as the group entitled to selfdetermination, based in the intrinsic and instrumental value that national identity and national
belonging bring to their members. Similarly, the kind of ‘wronged group’ that is eligible to claim
injustice as a ground for a moral group right to self-determination and possibly secession is a
‘wronged nation’. I will not go over the argument again here. It will suffice to recall that, we, as
individuals, do not identify in isolation, but rather form our understandings of who we are, where
is home, what we desire and what we hold as right and valuable collectively in the nation. To
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reiterate, a nation is an inter-subjective understanding of individuals as members sharing a
national identity not reducible but supervening on the members’ identities.
Following Anna Stilz’s account of moral group self-determination already referred to in
Chapter I, I identify three other criteria to be added to that of being a ‘nation’ in identifying
relevant moral agents for self-determination.
2.2.2 The ‘political relationship condition’. The first criterion is Stilz’s condition of ‘political
relationship’, where the group making self-determining demands must have established an
institutional relationship of political cooperation in the recent past (2014b, 212). This
relationship may be developed through a state, a sub-state, or an organized movement. This
entails that mobilization for self-determination, and perhaps secession, is crucial in determining
what a national group is entitled to a moral right to self-determination. Not only is mobilization a
manifestation of the value of the nation for its members and of the bonds of attachment that are
part and parcel of said value, but through mobilization, the nation becomes political and
embodies its political project and demands. Mobilization represents proof of the national desire
to be self-determining, and possibly to enjoy full self-determination in the form of independent
statehood before any referendum or plebiscite can occur – one would not want to impose a
reform of institutional arrangements without expressed desire for it on the part of the group
affected by the reform.
2.2.3 The ‘objective legitimacy’ condition. Stilz’s second condition of relevant agency, that of
‘objective legitimacy’, states that the self-determining group needs to have the capacity to sustain
a legitimate state (or, I would add, a legitimate intra-state autonomy arrangement), meaning it
can uphold the basic human rights of all its members, including minorities (minorities within
minorities) or individuals that may live among a nation without being a member. This makes the
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political relationship of cooperation between members one that is “reasonable to value and
affirm” (Stilz, 2014b, 212). In a context of ‘simple’ self-determination, where intrastate
autonomy arrangements falling short of secession are the form of self-determination found
appropriate, it is incumbent to the existing liberal state to safeguard the protection of basic
human rights for all its citizens, potentially against what Spinner-Halev calls ‘internal injustice’
(generated by a group’s own rules) (2012, 164). Intrastate autonomy arrangements, while
providing some jurisdictional autonomy to the groups to which they are granted, are found
within the larger state’s jurisdiction. As such, nations to which intra-state autonomy
arrangements have been granted must be assisted by the state in reaching and upholding basic
justice, no matter whether they have suffered from injustices or not; it is already the
responsibility of the liberal state to ensure that basic human rights are upheld for all, including
members of what will become an intra-state autonomous nation.30
Spinner-Halev however cautions against simply imposing on alienated groups, more
specifically oppressed or wronged groups, a liberal conception of justice; “individual rights may
not seem so liberating when they are associated with the oppressor, and it is hard to blame people
for not wanting to turn into their oppressor” (2012, 144). To impose such individual rights runs
the risk of feeding resentment, despondency or violence. As such, without accepting that just any
violations of human rights may be acceptable in the name of self-determination, Spinner-Halev
argues that oppressed groups can be ‘provisionally privileged’ with regards to groupdifferentiated rights or that they at least have a better case for it than non-oppressed groups
(2012, 147). This leads him to choose a much too-narrow conception of ‘basic human rights’ by
30
Such will not be the case when the chosen form self-determining arrangement is secession. Indeed, through
secession, the self-determining nation subtracts itself for the existing state’s jurisdiction. It is then not at all obvious
that the existing state has a responsibility to continue to ensure that the nation lives is conditions where basic human
rights are protected.
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asserting that groups can enjoy self-determination provided they uphold a Shueian conception of
basic justice in a democratic setting, where ‘basic human rights’ are taken to be limited to
subsistence and physical security rights. This allows for alternative social, political and economic
arrangements than those promoted by liberal justice (Spinner-Halev, 2012, 146; Shue, 1980, 2022), while the ‘democracy’ requirement for self-determination entails that for a group to be
granted autonomy, its rules need to be voted upon in a democratic manner, ensuring internal
political equality. Indeed,
democracy does not ensure that the community will get their rules right, or
allow it to speak with one voice. But democracy ensures a fair rule-making
process. Ensuring participatory rights to members means that the community’s
decisions have an important element of legitimacy to them (Spinner-Halev,
2012, 165).
Yet, while I do agree with the necessity of a democracy requirement, and that injustice
differentiates indigenous peoples and other wronged groups from nations that have not suffered
from such injustice, I distance myself from such a consequentialist view of the application of
basic human rights and argue that the difference between oppressed and non-oppressed groups
must be translated in additional duties befalling the states to help reach conditions where basic
human rights are upheld, rather than in holding groups to different, and minimalistic31, standards
of human rights. This may reinforce a bias in favor of a liberal conception of justice, but this
moral theory of secession aims to be action-guiding, to be put in practice in the world we live in,
which is a liberal democratic state-dominated world where the doctrine of human rights prevails,
if only to some extent. While, as Allen Buchanan has pointed out, it would be disingenuous to
claim that basic individual human rights will never be violated in case of intrastate autonomy, it
31
Shue’s account of basic human rights is even more minimal, since Spinner-Halev adds liberal democratic rights to
it by imposing a democracy requirement on self-determining wronged groups. This makes his account of basic
justice less minimalist than it first appears. However, this remains in my view a too-narrow conception of the basic
human rights that need to be upheld for a group to be legitimately self-determining.
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is not a problem that pertains to such self-determination arrangements exclusively, but rather to
the distribution of political power in general, making it a moot point barring a reform of our
political system (2004, 422). Furthermore, recalling Shklar’s argument mentioned earlier, while
it may be difficult to adjudicate between different cultural conceptions of ‘justice’ or ‘good’,
‘evil’ or ‘injustice’ are more easily identifiable. In that outlook, most violations of basic human
rights, understood in a broader sense, should not be permitted. This is why I define ‘basic human
rights’ needed to be upheld for a group to be legitimately self-determining in the Rawlsian sense.
For John Rawls, basic human rights are those defined by articles 3 to 18 in the Universal
Declaration of Human Rights of 1948 and “set a necessary, though not sufficient, standard for
the decency of domestic political and social institutions” (1999, 80). Such basic human rights are
respected in a liberal constitutional democratic regime, but can be upheld in undemocratic,
‘decent hierarchical societies’; they set limits to a regime’s internal autonomy (Rawls, 79, 81).
However, the issue of gender equality, which is often a concern when addressing indigenous
self-determination (Levy, 2003, 125), is not directly addressed in a definition of basic human
rights as those expressed in articles 3 to 18; while these articles, within the broader Declaration,
aim to create social and legal equality, they do not discuss discrimination against women
specifically, or issues such as women’s representation in politics, equal opportunity in the work
force, and so on.32 Imposing gender equality understood in these terms as a criterion for selfdetermination might be a step too far from the refusal to outright impose liberal justice. As such,
it is crucial that Spinner-Halev’s democracy requirement be upheld along with Rawlsian basic
human rights, ensuring that minorities or potentially oppressed groups such as women at least
have a say in the eventual unequal or discriminatory social norms and structures that are
32
However, in his non-ideal hypothetical example of Kazanistan, Rawls seems to believe that a ‘decent hierarchical’
society that abides by the prescriptions of basic human rights will, in the face of dissent demanding change, instigate
reforms in the rights and the role of women in society (1999, 78).
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institutionalized within their collective.33
34 35
I shall come back to this second condition of
‘objective legitimacy’ and ‘basic human rights’ below, and address what it might mean for the
conditions of agency that must be met for moral secession.
2.2.4 The ‘subjective legitimacy’ condition. Stilz’s third and final condition for moral collective
self-determination is the ‘subjective legitimacy’ condition, already discussed at length in Chapter
I. This condition stipulates that the majority of the group’s members subjectively affirms their
political relationship and their mobilization for self-determination, as well as jointly expresses a
lack of subjective affirmation of the state institutions under which they live (Stilz, 2014b, 212).
There is a need for nations to evolve under institutions that are expressions of themselves, and to
have access to a public sphere where their political and national identity can flourish. Such
subjective legitimacy, or lack thereof, can be measured by expressions of dissatisfaction with the
existing constitutional order and by manifestations of mobilization for self-determination,
whether they be protests or supervised mechanisms such as referenda or plebiscites.
These are then the four conditions of agency that must be met by an agent in order to
morally be entitled to make self-determining demands. An important objection – already referred
to earlier – could be raised against the first condition – that of the ‘nationhood’ criterion – and
needs to be addressed. Why should the nation be the type of group that is singled out? Why is the
33
Moreover, Spinner-Halev recommends that internal democracy should be accompanied by efforts to empower
women, which may not guarantee the reform of personal or religious laws or amend illiberal mores, but at least
should ensure more legitimate decision processes (2012, 173).
34
I take Rawls’s ‘decent consultation hierarchy’ criterion, part of the standard of decency required for peoples to be
tolerated in the Society of Peoples which entails that members of decent societies have the right to be consulted and
to play a substantial role in the political life of their society, to be insufficient in ensuring the protection of internally
discriminated groups such as women (Rawls, 1999, 61). Indeed, one would be hard-pressed to identify a non-‘liberal
democracy’ today that implements such consultation procedures. As such, the criterion of ‘decent consultation
hierarchy’ cannot be plausibly taken as sufficient to prevent such outright discrimination or abuse of power.
35
The same caveat regarding gender equality can apply to religious affiliation; while Articles 3 to 18 prohibit
persecution based on religion, they do not clearly protect against non-legal discrimination based on religious
affiliation, which can notably lead to economic inequality or limited political opportunities. However, as it is the
case for gender equality, the spirit of articles 3 to 18 is to foster social equality. Since individuals in a democratic
society that respects articles 3 to 18 would be free to dissent and express their views, such discrimination would
hopefully be prevented.
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nation the type of group that can legitimately mobilize for self-determination and subjectively
refuse to affirm the state? The argument goes like this; a nation, beyond any argument of
intrinsic and instrumental value, may not have the type of exclusive institutional relationship of
political cooperation discussed here, but might be mobilizing for its establishment. Furthermore,
even though Stilz includes a movement for self-determination, liberation or secession in what
constitutes the type of relationship of cooperation she is describing here, such a movement may
only be minimally institutionalized and short-lived. Is there a minimal timeframe for which such
a mobilized movement needs to exist and remain mobilized to be considered legitimate? Stilz’s
‘political relationship’ criterion requires it to have happened in the ‘recent past’, for example.
There is a fear of ‘romanticizing’ of the bonds of attachment and meaning existing between
members of the nation, which might then appear to be selected out arbitrarily. Why couldn’t
other types of identity-based groups mobilize for self-determination?36 It might also be argued,
and increasingly so, especially when discussing questions of secession, that no state is truly
composed of a nation which, by a majority, subjectively affirms the state. Taking the case of
Canada, for example, it might be said that, as an immigrant country, it is composed of a
multitude of nations or, rather, its identity may be becoming, if it is not already, ‘post-national’.
Would Canada’s authority over the majority of its population then be illegitimate? I do not think
so; Canada seems to be a multicultural nation. While the support of its institutional form may not
be unanimous among its citizenry, a majority of Canadians affirms it every day, even if
unconsciously and covertly, by reproducing its institutions and taking part in joint political
36
As specified in Chapter I, what constitutes a nation, its identity, need not be culturally based (the uneasiness with
the common association between culture and state is the grounds on which Stilz rejects the moniker of ‘national selfdetermination in favor of a more strictly political approach to self-determination (2014a, 5)). As such, I take a group
seeking self-determination on the basis of a shared political enterprise to be a ‘national’, ‘identity’ based conception
of self-determination; group membership would here be grounded on self-identification to a shared political project.
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action, by conforming to its institutions and laws and collaborating with its agents, reproducing
and perpetuating the legal order and rendering its policy-making efficient (Stilz, 2014a, 23).
The argument then made for the nation being the type of group morally relevant for selfdetermination, in addition to the instrumental and intrinsic argument already made in Chapter I,
lies in a requirement of social cohesion. Taking heed from John Stuart Mill’s thoughts on
nationality – but refraining from any concept of a hierarchy of nations – national bonds, or what
he calls ‘common sympathies’,
do not exist between them [members of a nationality] and any others –
which makes them co-operate with each other more willingly than with
other people, desire to be under the same government, and desire that it
should government by themselves or a portion of themselves exclusively
(1993, 391).
As such, there is a prima facie case for the nation, with all the peculiarities that make it
uniquely significant to its members, to be the relevant agent for self-determination in the name of
stability and political efficacy. It might even be, in fact, that a national identification functions to
encompass all other identity referents, helping to make them all cohere together (Nielsen, 1998,
124). Stilz herself values self-determination not only for intrinsic, but also instrumental reasons:
self-determination, I would argue especially that of nations, participates in making legitimate
institutions more stable, and “enables legitimate political institutions to function better” (2014b,
214; 2014a, 25). This, in addition to the intrinsic and instrumental value of the nation, is why the
mobilized, objectively and subjectively legitimate nation is singled out as the moral group
entitled to self-determination.
2.3 Do injustice claims influence the choice of self-determination arrangements?
The discussion has so far focused on the principled grounds for a right to self-determination,
as well as the conditions of agency that make a group the relevant agent to enjoy such a right. I
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now turn to the form of arrangements that self-determination should take. I have argued that in
the world of states that we live in, the statist form is preferred as the dominant and most effective
instrument of collective full self-determination. But this might, and in fact often does, differ
when discussing the self-determination of wronged nations, including that of indigenous peoples.
Yet, as argued earlier, the value-added of the injustice-based argument pertains to the duties and
responsibilities incumbent to the existing state, not to the form self-determination should take, or
to the standards of basic human rights necessary for a nation to be morally making legitimate
self-determining claims.37 It is precisely the point of self-determination that if the state is seen as
partially legitimate and if a national group is recognized as entitled to a right to selfdetermination, the form that this self-determination should take is largely left up to the group.38 It
is nevertheless interesting to discuss what might indigenous self-determination look like, in order
to better understand what duties and responsibilities may exist on the part of the state in
reforming existing institutional arrangements in light of a right to self-determination.
Numerous forms of intra-state autonomy and sovereign arrangements for indigenous selfdetermination have been suggested. The final report from the Canadian Royal Commission on
Aboriginal Peoples (RCAP) suggests three different models of self-government for indigenous
peoples in Canada, arrangements that are ‘realistic’ and ‘workable’ within the framework of the
Canadian constitution. First, a ‘nation government’ enjoying the autonomy to exercise its
authority regarding a wide range of powers may be the arrangement selected by indigenous
37
I have notably further qualified Spinner-Halev’s suggestion that oppression can lead to granting groupdifferentiated rights to wronged (but democratic) groups – including in making such groups provisionally privileged
by holding them to different, arguably lower understandings of justice and basic human rights – by broadening what
is understood as ‘basic human rights’ from a Shueian to a Rawlsian definition.
38
This does not mean, of course, that any claim of self-determination can be made. These need to be made by a
relevant nation and must be grounded in the value of belonging and possibly compounded by an injustice-based
argument. The implementation of the form of self-determination chosen in practice, however, will necessarily entail
a long process of negotiation between the newly self-determining unit and the existing state. Such practical
considerations will be evaluated further in Chapter III.
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peoples that exhibit not only a strong sense of collective identity, but also live on an exclusive
territorial unit. Second, a ‘public government’ arrangement where all residents participate
equally in the functions of government might be the most appropriate for aboriginal peoples that
are the majority group among a heterogeneous population living on a particular territory. Finally,
a ‘community of interest’ government based on voluntary delegation of membership and
authority might be best suited for aboriginal communities found in urban areas, where they could
operate within municipal boundaries (RCAP, 1996).
Following this vein of differentiated arrangements adapted to the reality of indigenous
peoples, Iris Marion Young argues in favor of a form of localism and decentered democratic
diverse federalism so that institutions of representation can be implemented in regional (and
international) regimes and this, in a system of global governance (2007, 36-8). Further, she
argues for self-determination as relational autonomy in a context of nondomination,39 which
entails that the peoples’ relationships are regulated by institutions in which they all participate
(including the possibility of overriding decisions from outsiders) and that ensure ongoing
negotiations (Young, 2007, 40).40 For her, then, indigenous self-determination does not mean
sovereign independence, but reformed political institutions that minimize relations of domination
between peoples.
Similar, less specifically prescriptive arguments about intra-state institutional reform are
formulated by Ypi and Lu, who both argue that existing institutions need to be reformed in order
for ‘natives’, or victims of colonial oppressive structures, to be granted the same prerogatives as
39
Philip Pettit defines domination, or rather dominating agents, as agents that “have the capacity to interfere […] on
an arbitrary basis […] in certain choices that the other is in a position to make” (1997, 52).
40
This, however, is premised on a misunderstanding according to Jacob T. Levy, since nondomination judges who
gets to decide the merits of decisions prior to analyzing jurisdictional authority (2008, 70). Self-determination
should work the other way around, he argues, and focus first on jurisdictional authority.
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‘colonists’ in order to establish equal and reciprocal terms of political association, and to be able
to enjoy effective political and social agency, respectively (Ypi, 2013, 167; Lu, 2011, 264).
Buchanan adopts a similar rectificatory justice stance in discussing the need for new
institutional arrangements for indigenous peoples – which he argues should be done through
intrastate autonomy arrangements. For Buchanan, such arrangements may be a matter of
rectificatory justice in restoring the self-governance of which indigenous peoples were deprived
by colonization; they may be a mechanisms for protecting indigenous peoples from past and
present individual human rights violations; they may be found helpful in settling land claims,
especially where land was lost due to treaty violations; and finally, intrastate autonomy
arrangements fit into rectificatory justice arguments by providing measures to protect indigenous
peoples from the detrimental effects of the disruption of the application of indigenous customary
law by the imposition of alien liberal regimes (2004, 415).
Exploring these different suggested arrangements and their normative bases leads to several
conclusions regarding indigenous self-determination, and the self-determination of wronged
groups more generally. Firstly, the form of self-determination arrangements that should be
adopted ought to be chosen by the indigenous peoples themselves and then negotiated, as much
as possible free of biased, often liberal, pre-conceptions. As pointed out by Tully, the apparent
self-determination found in the need for consent through negotiation can easily be usurped by the
frame within which such negotiations occur, which is often that of the legal, political and
economic institutions that have been imposed on wronged groups without their consent. There is
thus an urgent need for negotiations to unfold in a different “institutional and discursive matrix”,
one that is not ‘hegemonic’ or dictated by the historically dominating partner in the negotiations,
perpetuating and reproducing patterns of colonialism (Tully, 2010, 241-2). Secondly, the form of
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self-determination should also adapted to the group’s situation on the ground; self-determination
arrangements ought to be formulated in a way that allows for rectifying the issues from which
legitimate self-determining demands arise, whether it be solely filling the gap that might exist
between the state institutions under which a national group lives and its subjective affirmation of
those institutions, or, additionally, rectifying unjust institutionalized relationships and institutions
by reforming the constitutional order and redrawing boundaries. Thirdly, such arrangements may
entail institutions that differ from those suggested by the liberal state tradition, and which the
existing liberal state should accommodate. Indeed, lastly, in light of the need to rectify past and
present injustice, the existing state has a particular duty to participate, negotiate and assist in the
instauration of such self-determination arrangements, a duty that compounds those that follow
from a right to self-determination grounded in the value of belonging. More specifically when,
and in what capacity, the state’s duties regarding indigenous self-determination (or selfdetermination of a ‘wronged’ nation) might extend beyond the duties a state has towards any
other national group making self-deterministic claims has not yet been discussed. It is when
identifying the conditions of agency that make nations relevant agents for secession that this
difference can be highlighted.
2.4 The appropriateness of secession as a means for the self-determination for wronged
nations
As the arrangements proposed above suggest, indigenous groups tend to demand selfgoverning arrangements that fall short of secession (Young, 2007, 31, 44; Asch, 1985, 34-6).
Young specifically argues that self-determination for indigenous peoples (as well as for other
nations) should not mean non-interference, which occurs through secession, where an
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independent sovereign state regulates any activities and institutions within the borders of its
territory and where no other state or supra-state entity can interfere and override its authority
(2007, 45, 50). Rather, her conception of the appropriate form of indigenous self-determination
outlined above is self-determination as relational autonomy in a context of nondomination,
which gives indigenous groups the “right to their own governance institutions through which
they decide on their goals and interpret their way of life” (Young, 2007, 50). What relational
autonomy as nondomination entails and is not made explicit in self-determination as noninterference is that the self-determining group and outsiders – for example, the existing larger
state—, inevitably tied in a mutual relationship, must take each other into account when
governing because they impact each other and may affect each other’s interests adversely
(Young, 2007, 51).
While I do not dispute the need for both parties to negotiate the terms of their relationship, I
fail to see why self-determination must be understood in a sense limited to the purpose of liberal
freedom as non-interference (or independent statehood), necessarily falling short of selfdetermination as understood in the republican freedom sense of nondomination. Negotiations are
an integral part of any autonomy arrangement, and the state (or the result of self-determination as
non-interference) seems the most effective institutional form of self-expression for nations in the
current world of states; one may be a sovereign state, but one still has to live in a community of
states where negotiation and compromise are necessary, at the risk of being severely
marginalized. Non-domination does not preclude non-interference. As such, the existing state
and the self-determining unit must take each other into consideration both during and after
negotiations, and for both intra-state autonomy and secessionist arrangements. Furthermore, I
have already placed the ‘objective legitimacy’ criterion as necessary for a nation to be self-
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determining, meaning basic justice must be upheld for all members for the group to legitimately
be self-determining. The argument that self-determination as non-interference identifies a single
agent that worsens the situation of another (such as internal minorities) should not necessarily
hold here (see articles 6, 13 and 15 of the Universal Declaration of Human Rights (1948),
notably) (Young, 2007, 47-8). Reforming existing institutions in a way that respects and upholds
self-determination rights precisely aims at eliminating such instances of illegitimate authority
and domination. As such, I do not disqualify indigenous groups or other wronged nations from
the possibility to secede; while self-determination presupposes nondomination (non-interference
is not a necessary nor sufficient condition of self-determination (Young, 2007, 52)),
nondomination can mean non-interference, in the sense of seceding in order to form a distinct
jurisdictional authority. 41
2.5 Conditions of agency – the identification of the relevant agents for moral secession
2.5.1 ‘Acceptable costs of secession’ criterion. I take one sole criterion as needing to be added to
those of moral internal self-determination for an agent to be legitimately eligible for claims of
external self-determination towards moral secession: that the costs of secession must be
acceptable.42
43
These costs can be understood broadly as violations of ‘basic human rights’ but
41
I do not wish here to take position on the nature of freedom in the ‘liberal freedom as non-interference’ versus
‘republican freedom as nondomination’ debate per se, although I am tempted to agree with a republican conception
of freedom or liberty that adopts an ‘interference-without- (arbitrary) domination’ approach – where the rule of law
is understood as a form of interference, and where non-interference for a group is not equated to independent
statehood (Pettit, 1997, 35). However, what matters for my purposes here is that understanding self-determination as
nondomination does not preclude non-interference – understood as possible only through independent statehood – as
a self-determining arrangement.
42
I have already argued that any self-determining nation must uphold minimal requirements of respect for basic
human rights. The costs of self-determination must be acceptable as well. However, as explained above, the
‘economic viability’ condition and respect for other basic human rights do not apply in the case of intrastate
autonomy arrangement, since the self-determining unit, while autonomous, is still found under the jurisdictional
authority of the existing liberal state. As such, if the form of self-determination chosen is that of intrastate autonomy
arrangements, it already falls under the duties of the state to ensure economic sufficiency and viability for all its
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more specifically here, must fall short of preventing ‘economic sufficiency’. This is a subset of
the Stilz’s second, ‘objective legitimacy’ condition. Indeed, in order to be able to ensure the
respect of basic human rights understood in the Rawlsian sense (but also found in a more
minimalist, Shueian definition),44 a minimal level of economic viability is needed.45 While an
economic setback may be a sacrifice collectively consented to in the name of self-determination,
economic sufficiency and viability are necessary for the seceding state to be legitimate, and for
that state to have the capacity to uphold other basic rights for its citizens.
It has been argued that it is impossible to know beforehand if a seceding unit will deliver
basic justice to all its members (Moore, 2001, 211, 215). While this may be true (it is in fact true
of any state), we can identify whether or not the seceding entity has the capacity – in the form of
the necessary institutions, infrastructures, access to and exploitation of resources, notably – to do
so. Moreover, attaching such a condition to the right to secession allows us to condemn a
seceding state which would be unable to achieve the required justice standards and, if a moral
collective right to secession becomes recognized in international law, allows us to forbid it
legally as well.
citizens, as it is the case for the protection of all basic human rights. The question here is whether or not such
obligations still hold in the case of secession.
43
It might be argued that disqualifying nations from enjoying a right to self-determination and secession on the basis
that they cannot deliver basic justice to their members is problematic since so many existing sovereign states do not
meet this criterion and even lack the institutional capacity to do so. However, I take this claim as a separate issue
than what is argued here. The principles I am identifying are those that might make nations moral relevant
candidates for independent state sovereignty. The question of whether or not existing states are illegitimate in the
face of the criteria identified falls outside the scope of this analysis. Nevertheless, while there might be a
responsibility on the part of the international community to try to uphold basic human rights, the theory I am
formulating would fall short of endorsing some form of neocolonialism, since assistance is only required on the part
of the state that has committed injustices towards the self-determining nation. The possibility that such a duty of
assistance might exist at the international level for nations seeking self-determination that have been the victim of
the unjust international structures of colonialism, as argued by Lu (2011), will be addressed in Chapter III.
44
This human rights protection requirement has also been argued in the case of secession by Allen Buchanan as well
as Altman and Wellman (Buchanan, 1997, 37; Altman and Wellman, 2009, 43, 50-1).
45
Similarly, the ‘objective legitimacy’ criterion implies that the failure of the existing state to uphold basic human
rights, including economic viability, could justify a claim to group self-determination, notably by explaining the lack
of subjective affirmation of the existing state by the self-determining nation.
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Two different situations may arise when addressing the ‘costs’ of secession and the capacity
of the state to uphold basic justice. First, the nation making self-determination claims may
voluntarily and willfully refuse to comply with rules of basic justice, by violating basic human
rights. In this case, the nation does not qualify for self-determination or secession. Second, it
may be the case that the nation making self-determining demands for secession is not capable of
delivering basic justice for its members, for reasons such as a lack of institutional capacity or
because of internal discriminatory social norms and practices, notably with regards to gender
relations.46 In such cases, the nation a priori appears not to qualify for self-determination, let
alone secession. However, this is where the additional duties attached to a claim for selfdetermination grounded in an injustice-based argument come into play. There does not exist a
rectificatory duty akin to Rawls’s duty of assistance to burdened societies on the part of the
existing state to assist all nations in their self-determining and/or secessionist claims beyond a
duty to recognize their right to self-determination and to negotiate eventual arrangements
(Rawls, 1999, 106). Since there is no rectificatory obligation to nations that were not treated
unjustly by the larger state, there is no duty on said state to assist such nations build viable,
decent institutions, even if they are mobilized for secession; considering the consequences of
secession, it does not fall within the duties of the existing state to encourage or even give
incentives to nations towards secession. However, such a duty does exist when the national group
making self-determining or secessionist demands has been the victim of sustained, enduring
injustice, or of historic injustice that has participated in preventing the building of institutions
necessary for delivering basic justice; “if a group is both in a depressed situation in society and it
46
I have already argued when discussing indigenous self-determination that while such discriminatory practices can
objectively be found objectionable (overriding moral particularism/incommensurability arguments), they are not
directly encompassed in a Rawlsian understanding of basic human rights and, as such, can be allowed in a
democratic setting in an effort not to unduly enforce liberal justice. Such violations thus would not prevent nations,
including indigenous groups, from being eligible for self-determination, let alone secession.
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has suffered an oppressive treatment and there is evidence of a causal connection between the
two, then the group has a prima facie right to compensation”47 (Edwards, 1999, 261-2). Indeed,
nations that have been wronged by the state can much more easily make the claim that the
injustice they have endured at the hand of unjust structures and institutions imposed by the state
has prevented them from developing institutions which would make economic viability possible,
and have prevented them from addressing issues regarding or from updating norms pertaining to
the respect of basic human rights. These groups have been kept in an impoverished and
marginalized position as a direct consequence of injustice suffered at the hands of the state, and
this relationship of causality makes the state collectively responsible in reforming these unjust
structures and institutions (Moore, 2003, 95-6). “From a liberal democratic perspective, the
process by which indigenous peoples were colonized and dispossessed was illegitimate” (Moore,
2003, 101). As such, when nations that have been victims of injustice make otherwise legitimate
secessionist claims, it is incumbent to the state responsible for upholding unjust structures,
institutions and relationships to assist those nations to meet the required standards of respect for
the basic human rights to be eligible for self-determination and secession. This might entail
helping these nations develop sufficient autonomous economic institutions48 or help them reach
what can be objectively recognized as ‘decent’ levels of respect for other basic human rights.
Again, this reasoning applies to both historical and enduring injustice: whether or not the
wronged group now enjoys structural equality, shortcomings causally linked to state-perpetrated
injustice engender a rectificatory duty on the part of the state to assist the wronged group in
47
Although a ‘reasonable’, rather than ‘clear’, causal claim between injustice and the disadvantage position of a
group in society might be more appropriate and realistically easier to establish.
48
For example, the Royal Commission on Aboriginal Peoples has noted in its final report that the state ought to help
finance self-government for aboriginal peoples in Canada, seeing as “much of the wealth of this country [Canada]
comes from lands and resources to which, in many cases, aboriginal peoples have a legitimate claim”. As such, selfgovernment arrangements should here be accompanied by a fair redistribution of lands and resources, which can
help aboriginal peoples become largely self-financing and economically viable (RCPA, 1996).
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reaching the necessary standards in order to legitimately qualify for secession. Current structural
equality does not supercede past injustice and its consequences.
2.5.2 Territoriality. A final crucial practical hurdle in the path to secession to take into
consideration is that of territoriality. Many have argued that secession can only work when the
seceding group is territorially concentrated (Moore, 1998, 137; Stilz, 2014a, 36). While selfdetermination and secessionist demands may be relatively more easily dealt with that is the case,
duties emerging from a moral right to secession would require the seceding state and the
remaining state to negotiate the boundaries of a new territorial unit on which the seceding nation
or the autonomous nation in an intrastate arrangement would enjoy jurisdictional authority. As
such, contrary to what some authors that take a more empirical approach to the study of
secession might argue, the ‘territoriality’ question does not need to precede self-determination
and secessionist demands (and therefore is not included in the acceptable ‘costs of secession’
directly).49 It is nevertheless often a crucial aspect to be considered in negotiations, notably in the
case of indigenous peoples, since territorial arrangements touch upon issues such as resource
rights, education policies, border control and so on. A legitimate claim to self-determination and
secession will trigger a demand for, and negotiations towards, obtaining necessary territorial
institutions. This is also particularly relevant when discussing indigenous self-determination,
since very few indigenous nations form a territorially concentrated large group (Young, 2007,
61).
49
Jason Sorens, notably, argues, following a Weberian account of the state, that secessionists must secure control
over a portion of territory in order to make secessionist demands; following empirical observations, he concludes
that culturally or ethnically distinctive groups that are not territorially concentrated in their homeland fail to make
secessionist demands. Consequently, the “units of potential secession are territorially concentrated populations”
(Sorens, 2012, 19-20). I argue, however, that non-territorially concentrated nations may also be morally entitled to a
legitimate right to secede.
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In the case of secession justified at least partly on injustice grounds and where the wronged
nation is territorially concentrated, Buchanan argues that “the failure to satisfy this fundamental
condition [of adequately protecting its citizens’ basic rights] in effect voids the state’s claims to
the territory in which the victims reside, whereas the fact that they have no other recourse to
avoid this fundamental injustice gives them a valid title to it” (Buchanan, 1991, 44-5). However,
as Jeremy Waldron explains, the negotiation of the limits of intrastate territorial autonomy
arrangements or of the seceding unit needs to take into account the needs and interests of the
citizens of the existing state that will remain after the new territorial divisions as well. Indeed,
acknowledging the need for redistributive justice in rectifying past and present injustices through
self-determination, justice must be responsive to circumstances, and the demands of distributive
justice regarding the larger society also need to be considered – that population most likely had
little to nothing to do with the implementation and upholding of unjust institutions and
relationships (Waldron, 1987, 23, 25; Buchanan, 2004, 417).
Ultimately, however, the moral theory of secession argued for here need not be grounded in
an injustice-based argument. I argue that if a nation, territorially concentrated or not, makes a
legitimate demand for secession due to a lack of subjective affirmation of the state on the part of
the national sub-state group, then it is the duty of the existing state to enter into negotiations with
the seceding unit to determine the new territorial boundaries of the existing and seceding states.
And, taking heed from Waldron’s argument, the new boundaries must take into account the
needs of the population of the existing state and ensure that basic human rights, which
necessitate economic sufficiency, can be upheld in both territorial units post-secession. Again,
the costs of secession must be acceptable.
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Section III – The Application of the Moral Theory of Self-Determination and Secession to
Indigenous Peoples. The Case of the Nisga’a in British Columbia
Having identified the relevant moral criteria for self-determination and secession and having
established that indigenous peoples can legitimately demand secession, it is now important to
explore how, and if, these principles can be applied in practice. For this purpose, I will study the
case of the Nisga’a, who in 1998 ratified the Nisga’a Final Agreement (NFA), “the first
comprehensive claims agreement to include recognition of the inherent right of self-government
and constitutional protection of this right” (Allen, 2004, 233). This agreement was the result of
almost 100 years of negotiations between the Nisga’a and the governments of British Columbia
and of Canada, and established a new level of government, delegating to the Nisga’a nation
intra-state autonomy regarding government, resource management and land ownership (Hogan,
2004, 299).
3.1 The ‘nation’ criterion.
The Nisga’a are recognized as a nation, and thus meet the first criterion of relevant agency
for self-determination. Indeed, the NFA refers to the Nisga’a as a nation, and the preamble
clearly states that “the Nisga’a Nation is an aboriginal people of Canada” (NFA, 2000, 1). More
importantly, however, the Nisga’a Constitution, which was planned in Chapter 11, Article 9 of
the NFA, includes a “Declaration of the Nisga’a Nation” which details who are the Nisga’a and
clearly states that, beyond having lived in their homeland for time immemorial, “We are Nisga’a,
we declare to all the world - We are a unique aboriginal nation of Canada, proud of our history,
and assured in our future. We claim and take our rightful place as equal participants in Canadian
society” (Nisga’a Nation, 1998, 5). Similarly, Chapter 1, Article 1.1 of the Constitution states
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that “The Nisga’a Nation has existed from time immemorial and is the collectivity of those
aboriginal people who share the language, culture, and laws of the Nisga’a of the Nass Area, and
their descendants” (Nisga’a Nation, 1998, 6). I take these statements (the agreement, and thus the
Constitution, was ratified by the Nisga’a through a referendum) as the representation of clear
self-expressions by the members of their membership and belonging to the Nisga’a nation.
3.2 The ‘political relationship’ criterion
The Nisga’a have long collectively taken part in an organized and institutionalized political
relationship, and were engaged in the political process towards their self-determination for over a
century. It was in 1887 that Nisga’a Chiefs attempted for the first time to discuss the ‘Nisga’a
Land Question’ with the government of British Columbia. The first Nisga’a Land Committee
was formed three years later. A few demands were made and petitions signed until the India Act
of 1927 prohibited aboriginal peoples from discussing the ‘land question’, limiting Nisga’a
mobilization until the act was repealed in 1951. A new Land Committee was subsequently
formed in 1955, and the Nisga’a began negotiating with the Canadian government in 1976; the
British Columbia government officially entered the negotiations in 1990. The three parties
finally signed a framework agreement in 1991, and the Nisga’a Final Agreement in 1996. The
agreement was ratified in 1998, and came into effect in 2000, officialising the Nisga’a political
relationship and instituting a new level (some argue, ‘ethnic’) of government in Canada
(Aboriginal Affairs and Northern Development Canada, 2001).
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3.3 The ‘objective legitimacy’ criterion
The provisions of the NFA ensure that basic justice is upheld on Nisga’a Lands. Chapter 2,
Article 9 of the agreement stipulates that “the Canadian Charter of Rights and Freedoms applies
to Nisga’a Government in respect of all matters within its authority, bearing in mind the free and
democratic nature of Nisga’a Government as set out in this Agreement” (NFA, 2000, 18). As
such, while the Nisga’a have jurisdictional authority over their territory and can pass their own
laws, they are not subtracted from the obligations of the Charter, and their members can enjoy its
protection, although the settlement legislation prevails in case of a conflict. Similarly, Chapter 2
Article 13 also stipulates that federal and provincial laws apply to the Nisga’a, although again the
agreement prevails in the case of a conflict or inconsistency between the federal and provincial
laws and the settlement legislation (NFA, 2000, 18-9). Provisions have also been built into the
agreement to ensure standards in services, health and safety (Aboriginal Affairs and Northern
Development Canada, (n.d.-a)). Moreover, Articles 19 to 23 of Chapter 11 stipulate different
provisions for the protection of the approximately one hundred non-Nisga’a living on Nisga’a
territory, including the right to be consulted about Nisga’a government decisions that directly
and significantly affect them, as well as the right to participate and vote in Nisga’a Public
Institutions (government bodies, boards, commissions or tribunals) (NFA, 2000, 163-4, 12).
Ultimately, the Nisga’a are entitled to the same rights and protections that any other Canadian
citizens enjoy, in addition to the ‘section 35’ rights of the aboriginal peoples of Canada under the
1982 Canadian Constitution (Chapter 2, Article 23, NFA, 2000, 20).
Additionally, while the NFA recognizes that the Nisga’a nation has the right to selfgovernment, it “requires that the Nisga’a government be democratically accountable to Nisga’a
citizens”, with elections being held every five years, and all eligible Nisga’a citizens having the
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right to vote and hold office (as set out in the Nisga’a Constitution and legislation and provided
they meet the minimal age requirement) (Chapter 11, Article 5 k., NFA, 2000, 161). As such, the
Nisga’a nation upholds standards of basic justice for all and functions democratically, meeting
the ‘objective legitimacy’ criterion for moral self-determination.
3.4 The ‘subjective legitimacy’ criterion
The Nisga’a also meet the ‘subjective legitimacy’ criterion for moral self-determination by
subjectively affirming their membership in the Nisga’a nation and subjectively refusing to affirm
the existing territorial and institutional arrangements that previously prevailed. They expressed
such views by voting to ratify the NFA through a referendum held in November 1998,
simultaneously ratifying the Nisga’a Constitution for which the agreement made a provision in
Chapter 11 Article 9 (NFA, 2000, 160-1). The vote results were 1 451 for (61%), 558 against
(21%), with a 15% abstention rate (356 eligible voters) (Hurley, 1999, BRP 99-2F). As per the
requirements laid out in Chapter 22, this followed a debate at an assembly of the Nisga’a nation
where a motion was first proposed to refer the agreement to a referendum and then voted upon
(adopted by a simple majority vote). A simple majority was then necessary for the agreement to
be ratified by referendum (Chapter 22, Article 2 e., NFA, 2000, 249).
Furthermore, the NFA was the result of a lengthy negotiation process where the public and
third parties were able to address their concerns and educate themselves about the implications of
the treaty;
the Nisga'a Treaty underwent extensive debate in the B.C. Legislature and
in Canada's House of Commons and Senate. The Treaty includes
provisions that reflect how governments addressed the concerns of the
public and third parties which were brought to the attention of negotiators.
Nearly 500 public information and third-party consultation meetings were
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conducted during the negotiations (Aboriginal Affairs and Northern
Development Canada, (n.d.-a)).
The referendum through which the Nisga’a formally expressed their desire for selfdetermination thus appears to have been legitimate, confirming the lack of subjective affirmation
of the Canadian and British Columbia state institution on the part of the Nisga’a and the desire to
fill that gap through a self-determining, self-governing intra-state territorial agreement. The
Nisga’a, being a politically, democratically and institutionally organized nation that upholds
basic human rights and subjectively affirms their membership while subjectively rejecting the
state institutions under which authority they lived, were a relevant agent for moral selfdetermination.
3.5 The ‘acceptable costs of secession’ criterion
Finally, while the Nisga’a did not express the desire to exercise their legitimate and moral
right to self-determination through secession, it appears that they would also have been morally
entitled to do so if they wished it. Indeed, the costs that the Nisga’a seceding from Canada would
have incurred seem reasonable. It has already been discussed that basic justice is upheld by the
Nisga’a. More specifically, regarding economic viability, the Nisga’a were granted fish and
wildlife entitlements, as well as the ownership of all forest resources on Nisga’a Lands (NFA,
2000, 66, 103, 133). It has even been argued by Tracie Lea Scott that “the NFA does not merely
recognize Nisga’a title and traditional rights. The agreement recognized Nisga’a jurisdiction over
land and resources. (…) The NFA, while it secures access to resources, is not about rights. The
NFA is fundamentally about power” (2012, 10), more specifically, political and economic
power. For Scott, the NFA allows the Nisga’a nation to take “its rightful place in contemporary
Canada’s political, economic, social and cultural life” (2012, 11). As stated in the Nisga’a
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Constitution, “the Nisga’a Nation will prosper as a self-reliant society with a sustainable
economy” (Nisga’a Nation, 1998, 5). They appear to have been given the means to do so.
Furthermore, the NFA required that the Nisga’a implement a system of financial administration
comparable to the standards that are generally applicable for governments in the rest of Canada,
a system held financially accountable to Nisga’a citizens (Chapter 11, Article 9 l., NFA, 2000,
161). It should be noted that the Agreement also entailed a transfer of 211.5 million dollars from
the governments of British Columbia and Canada to the Nisga’a, comprising a capital transfer of
190 million dollars (Aboriginal Affairs and Northern Development Canada, (n.d.-b)).
As such, if they had so desired, the Nisga’a could have made a legitimate claim to secession,
and have done so while respecting principles of legitimacy, feasibility and stability. However, by
ratifying the NFA, they have given up that possibility, since, as stated in Chapter 2, Article 22,
“This Agreement constitutes the full and final settlement in respect of the aboriginal rights,
including aboriginal title, in Canada of the Nisga’a Nation” (NFA, 2000, 20). Nevertheless, the
Nisga’a case showcases that the moral argument and criteria for identifying relevant agents for
self-determination and secession laid out here can reasonably be applied in practice.
* * * * *
In sum, wronged groups such as indigenous peoples can best ground a right to selfdetermination in a ‘value of belonging’ argument compounded by an ‘injustice’-based argument.
Where the nation making self-determination claims meets the required criteria – i.e. its members
are in an affirmed, democratic political relationship where basic justice is upheld but where the
group does not subjectively affirm the state institutions under which it lives, due to alienation
resulting from injustice and/or to any other (reasonable) type of alienation leading to lack of
feeling of national belonging – it is entitled to a moral right to self-determination and the existing
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state has the duty to recognize such a right and negotiate self-determination arrangements with
the nation. If such a nation makes a further claim to secession, which costs are found acceptable,
this nation is also entitled to a moral, collective right to secede. Secession by a nation that meets
these criteria would not unduly infringe upon principles of legitimacy, feasibility and stability,
and is thus not only morally right, but morally and practically acceptable. Furthermore, if a
nation that has suffered sustained injustice at the hand of the existing state makes legitimate
secessionist claims, this state has the added duty to assist the nation in meeting basic human
rights requirements and build the necessary institutions for upholding such basic justice in order
to make the costs of secession acceptable and make said nation a relevant agent eligible for
secession.
Nevertheless, secessionism being moral and practically acceptable does not make it
automatically right or appropriate. It remains up to the nation, whether it has or is still being
wronged in the present or not, to subjectively but collectively determine if secession is needed,
or even desired, in an effort to feel ‘at home’, and then to enter into negotiations with the existing
state in order to exercise that moral right. Of course, such negotiations are bound to be extensive
and complex; a clear, institutional and legal pathway to secession should be carved out in order
to ensure that both domestically and internationally, states and nations abide by a true principle
of self-determination, and that nations have the opportunity and capacity to fully enjoy a moral
collective right to self-determination, which can lead to a moral collective right to secession.
Chapter III is devoted to the discussion of the institutionalization of a moral, legal, group right to
secession.
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CHAPTER III – INSTITUTIONALIZING THE MORAL GROUP
RIGHT TO SECESSION
“But a moral framework without an appropriate institutional embodiment is merely a moral
vision; a vision, though necessary for right action, is far from sufficient.” Allen Buchanan, 1991,
127.
If the account provided in Chapters I and II has successfully identified the principles
underpinning a primary moral group right to secession, there is a need for this right to be
implemented in practice, to be reflected both in constitutional and international law. In keeping
with Lea Ypi’s reconciliatory approach to theory construction which combines the strengths of
both ideal and nonideal theory, and having identified both the relevant grounds and agents for a
moral group right to secede, I now turn to nonideal theory and the bearings these findings should
have on political practice.
While any discussion of the institutionalization of a right to secede necessarily must remain
speculative, and many objections to the legalization and institutionalization of a right to
secession have been raised in the literature and will be addressed below, I aim to show that the
benefits of institutionalization outweigh those objections and fears, and that there is a strong case
for provisions for a right to secession to be incorporated in domestic and international law. First,
it is important to clarify the type of right argued for. I argue in favor of a moral, legal right to
secession, rather than of simply a moral claim-right to secession. I take the legal
institutionalization of the moral group right to secede as necessary for its implementation to be
not only feasible, but possible. I will then address the ‘why?’ and the ‘how?’ of the domestic and
international institutionalization of a moral right to secede, which I argue should take the form of
a domestic secession clause as well as an international provision of the group right to secede and
the establishment of an international, neutral third-party mediator.
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* * * * *
Section I – What Type of Moral, Group Right to Secession?
1. Legalizing the moral right to secession.
I have so far argued that the right to secession is a primary claim-right to which certain
national sub-state groups are entitled. This right to secede legitimizes the exercise of an external
moral group right to self-determination, meaning it grants to relevant nations the right to be selfdetermining outside of existing state boundaries and to create new, independent state institutions.
The language of ‘claim-right’ provides an added force to the moral claim made, expressing
urgency in fulfilling the warranted political claim, as well as the duties that befall the existing
state and the community of states in implementing a right to secede. But, contrary to what some
fear when discussing ‘rights’, the moral group right to secede in my account is defeasible and not
absolute or unconditional (Beiner, 1998, 165). Rather, it is heavily qualified and negotiated. But
what the language of rights allows to bypass is the pondering of whether the claim to secession
should be recognized as legitimate or not. If the relevant criteria are met, the existing state has
the duty to enter into negotiations with the seceding nation and to recognize its claim as moral
and legitimate, and the community of states, built on partial legitimacy, has the duty to ensure
that provisions and mechanisms for the enactment of the right to secede are available and upheld.
Indeed, the international society of states is partly responsible for upholding unjust international
social structures (Lu, 2011, 262-4).
This reasoning raises the question of whether or not a moral right to secede should also be
made a legal right to secession. If this is the case, how should it be recognized in domestic and
international law? A moral right is “an entitlement or justified claim whose justification does not
depend on whether any legal or political system is willing to recognize the right” (Newman,
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2004, 128), whereas a legal right is “an entitlement or justified claim that a legal system
recognizes according to the correct interpretation of its own rules and principles” (Newman,
2004, 128). Based on my account, a moral and, I now argue, legal right to secession should be
recognized by both domestic and international legal systems, and a moral right to secession
should be included in the recognized rules and principles of the international community of
states.
It has been said that secession is an issue that appears to be ‘beyond’ the reach of the rule of
law, not only because it raises fundamental political and moral objections, but because its
implementation meets severe practical obstacles (Christakis, 2006, 155-6). As I will demonstrate,
however, the benefits resulting from the institutionalization of a legal group right to secession
outweigh the objections that have been mounted against it, and the legalization of a right to
secession is necessary for it to be implemented as I have argued it ought to be, on a fundamental,
moral basis. Furthermore, with sensitivity to issues of feasibility and as well as social and
political stability, the institutionalization and standardization of the right to secede appears
indispensable. Ultimately, secession, understood as entailing independent statehood and
international recognition as a legitimate state, is a legal matter, and should be recognized as such
(Norman, 1998, 49).50
In fact, my account of a group right to secession should be taken not only as a critique of the
existing state of domestic and international law regarding secession, but also regarding the lack
of recognition of group rights, especially in international law. While some progress has been
made regarding the latter, exemplified by the United Nations Declaration on the Rights of
50
Nevertheless, while I take the right to self-determination to be a moral claim right, and while I argue that it should
become a legal right, it seems obvious that secession and self-determination grounded in an intersubjective
understanding of the nation and the lack of subjective affirmation of the existing statist form is not entirely
justiciable; understandings of nationhood, affirmation, as well as of more practical aspects such as what constitutes a
clear question for a referendum, for example, have to be left to political actors (Buchanan, 2003, 259).
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Persons Belonging to Ethnic, Religious or Linguistic Minorities, where Article 1 of the
Declaration refers to the right to protect the existence of a minority’s identity, namely the right of
the group as such (Resolution 47/135 G.A., 1992, Article 1; Lerner, 2003, 18), the recognition
and extent of group rights remain insufficient. Indeed, Article 8 also states that the Declaration
cannot be interpreted as stimulating secession or any other disruption of existing states’
boundaries, nor be used to justify the violation of the sovereign equality, political independence
of states, or territorial integrity of states (United Nations, 1992, Article 8; Lerner, 2003, 21-22).
In most constitutions and existing international law, minorities, including nations, do not enjoy a
right to external self-determination (Lerner, 2003, 23), despite the fact that the protection of the
rights of individuals are not sufficient in protecting the rights of groups, since these are not
necessarily captured by individual rights (Brownlie, 1988, 3). But if my argument is correct, it is
crucial that at least some group rights be recognized.
Section II – Institutionalizing and Implementing a Legal Moral Group Right to Secede
Those who recognize the importance of sustaining a commitment to the
project of creating and preserving a democratic polity will be careful to craft
a constitution that achieves incentives for engaging in ‘voice’ – that is,
constructive engagement in public deliberation -- while at the same time
allowing the option of ‘exit’ (Buchanan, 2003, 246; Hirschman, 1970, 3444).
2.1 The role of legal institutionalization.
The literature regarding the institutionalization and the implementation of the right to secede
is relatively sparse, as the focus seems to have long been put on developing theories, which
claims are still debated, before applying them practically. From Moore’s and Norman’s domestic
constitutional secessionist clause to Buchanan’s intrastate autonomy arrangements and reform of
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the existing international legal order, evaluating institutional mechanisms for applying secession
is necessarily tentative because it remains speculative, and because of the poor state of
international law and its contradictory position between territorial integrity and selfdetermination rights.51 In fact, both constitutional and international law mostly lack the relevant
institutional frameworks necessary to respond to secessionism, and yet, an institutional response
seems required to tackle such a persisting and potentially volatile issue (Norman, 1998, 35).
There are several advantages linked to the recognition and institutionalization of the right to
secession, both domestically and internationally. These advantages could contribute to states
accepting the instauration of the right, despite the fact that it initially appears against their
sovereign interests to allow dismemberment – most multinational states are governed by a
majority that has no interest in sanctioning any institutional means for secessionism to occur
legally and peacefully (Norman, 1998, 45). First, one such prominent incentive is that legally
establishing these conditions which would, over time, become entrenched norms, would prevent
the supersession of the rule of law by secessionist politics, the legitimization of their own rules
by secessionists as well as prevent secessionists from claiming to be acting outside the law or
from having recourse to extra-legal means such as violence and unilateral declarations of
independence (Norman, 2003, 203, 209; 2006, 195).
Second, institutionalizing the right to secession and specifying criteria for legitimate
secession would narrow down the number of secessionist movements which could hope to
succeed in obtaining independent statehood and international recognition, and could therefore
significantly dampen the nationalist fervor of ‘illegitimate’ groups seeking secession. This would
51
This last issue is addressed at length in Marcelo G. Kohen’s Secession: International Law Perspectives,
concluding that the principle of territorial integrity is erroneously applied to secession, as it is applies solely to
international relations, and that secessionist movements are not, at least currently, subjects of international law
(Kohen, 2006, 7).
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make the emergence of new secessionist movements less likely, at least for a certain type of
groups which could not hope to meet the relevant criteria (Norman, 2003, 193). Indeed,
procedural hurdles and conditions can serve to discourage secessions based on a feeling of
alienation due to ‘vanity’ or a fleeting dissatisfaction, as well as make it harder on secessionist
politicians to try to capitalize on such feelings (Norman, 2003, 199-200). Additionally, national
sub-state groups which would fail to meet the required relevant conditions could then focus their
efforts on reaching acceptable and just intrastate self-determining arrangements rather than
needlessly, and illegally, struggle for independence. “The most successful policy towards
secessionist movements is one that dampens separatist aspirations – and that is implemented well
before intrastate tensions reach the breaking point” (Orentlicher, 2003, 39).
Third, entrenching norms of secession would create a political culture where rather than
being vilified, secession could be freely and fairly negotiated if found legitimate and necessary
(Norman, 2006, 229). This appears necessary if secessionism is ever to be successful, as the
state’s population needs to regard it as potentially legitimate and acceptable so that negotiations
can occur in a spirit of cooperation (Buchanan, 2003, 240).
Furthermore, the domestic and international institutionalization of a legal right to secession
would help avoid several costs resulting from the non-regulation of secessionism, costs that
generally outweigh those borne out of the institutionalization of the right (Norman, 2006, 197;
Weinstock, 2001, 196). Notably, secessionist politics have a tendency to monopolize the political
agenda, leading to the neglect of other crucial issues and to the polarization of domestic elections
(Norman, 2003, 209). Ensuring a legal response and handling of secessionist demands would
help expedite and regulate the process (if it is found legitimate), allowing for politics to return to
‘business as usual’. Moreover, the political uncertainty and instability that often accompany
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secessionist politics can have severe consequences on the economy of the state (Norman, 2003,
209). Finally, ensuring that secessionist demands do not fall on deaf ears, both domestically and
internationally, can prevent secessionist conflicts from heating up due to frustration and further
alienation, as well as prevent adding to the grievances of secessionists (Norman, 2003, 204, 209).
As Jason Sorens has argued, a legalized path to secession is likely to reduce the likelihood that
the secessionist conflict will turn to insurgency, since it would undermine the ability of
secessionists to legitimize and justify the use of violence (2012, 47, 155). The secessionists’
efforts would rather be focused on mobilizing the nation towards a legitimate vote for
independence. Vice versa, the institutionalization of a right to secede would also reduce the risks
of the central government resorting to the violent repression of the secessionist movement.
Yet, despite all these benefits, it has been argued that any attempt at institutionalizing a legal
right to secede would fail to capture the details and complexities of each secession case. A clause
could rule out some groups being eligible for secession from the outset, for example, which
might actually be granted a right to secede upon further reflection. Similarly, it might be too
much to expect the parties in a secessionist conflict to agree on the interpretation of a domestic
clause (Aronovitch, 2000, 34). While it is inevitable that a domestic secession clause will most
likely not capture every eventuality of secessionist strife, which is why the constitution ought to
remain debatable and justiciable and why the Court ought to be consulted in need of precision,
these concerns would exist in the absence of a secessionist clause as well, and therefore should
not be taken as weighty in opposition institutionalization (Norman, 2006, 199). In fact, the
uncertainty of the secessionist question where it is not legislated at all is certainly much higher.
Indeed, it is unlikely that the absence of a legal procedure institutionalizing a right to secede
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would dampen secessionist claims (Norman, 2003, 205). To the contrary, its absence may
worsen the secessionist question from demands to crisis due to uncertainty and frustration.
For all these reasons, it appears that states may have an interest in sanctioning a secession
clause in their domestic constitution, an interest that would trump that of not addressing the
secessionist question, and this, despite the potential threat to their territorial integrity. But, even
more importantly, the reluctance that states may have to institutionalize a moral group right to
secede “does not itself prove that such procedures are not fair or just” (Norman, 1998, 45).
2.2 Domestic institutionalization of a moral group right to secession.
There is thus an need for a constitutional right to secede that will allow secessionist politics
to be recognized and standardized, to exist without the total rejection of the state’s authority and
legal order, and without having recourse to naked force (Buchanan, 1991, 145). The preferred
mechanism for implementing a domestic right to secede is a secession clause inserted in the
constitution. Such a clause should be rigorous, identifying the type of agent that makes a
legitimate candidate for secession, a body in charge of overseeing the negotiation, who, perhaps,
would be entitled to negotiate in the name of the seceding nation (e.g. the nationalist leaders) and
including a reasonably high threshold for political ‘divorce’ by stipulating stringent, but just,
criteria for legitimate secession (Norman, 1998, 53; 2006, 179-80).52
Applied to my account, then, this clause should identify the agents entitled to secession as
well as spell out a detailed procedure of secession (Norman, 2006, 176); a clause would allow a
legitimate agent that meets all the required criteria laid out in Chapter II – a nation that is
52
Several other considerations will need to be taken into account when incorporating a secessionist clause in a
domestic constitution, the first of which is the need for internal constitutional consistence, meaning the new clause
will need to be substantively and procedurally be compatible to the existing constitution. Further, the particulars of
the new secession clause should be adapted to the national situation and the past and current conditions of the state
and its nations (Buchanan, 1991, 129).
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politically mobilized and objectively and subjectively affirmed and affirmable, but that does not
subjectively affirm the statist form under which it lives – to hold a referendum on a clearly stated
question regarding the secession of the nation, and this, only if members of the nation have
previously expressed their desire to secede, notably through mobilization, protests, expressions
of alienation and dissatisfaction in the public sphere, and so on (Moore, 2001, 218). Further, the
negotiations should be overseen by both the national Supreme Court, with judicial review to
ensure that the central government does not abuse its authority, and by an international body
(more on this below). If members of such a relevant nation were to vote in a simple majority53 –
and with a voter turnout of 50% and above – for secession on a clear question, and if the issue
had been discussed at length in the media and in the public sphere beforehand, such as in
electoral debates in order for the consequences and implications of secession to be clearly
discussed and exposed and for members of the nation to be in a position to place an informed
vote, they would have a legitimate and moral mandate to negotiate secession. The existing state
would be obligated to enter into negotiations with the seceding nation to determine the terms of
secession; a majority vote in favor of secession does not represent a final decision, but the
initiation of the negotiation process leading towards secession (Norman, 2006, 195). These
negotiated terms would include the insurance that basic justice would be upheld in both the
remaining state and the newly formed state, the drawing of new territorial boundaries and
sharing of resources, the settling of the national debt, 54 the respect and renewal of treaty
obligations, as well as considerations of defense and security (Buchanan, 1998a, 233).
53
I do not take an overwhelming majority as being required; the moral principles taken as underpinning the right to
secede do not necessitate such a requirement. Rather, the moral principles grounding the right to secede are the
intrinsic value of the nation as well as its instrumental value for its members, in an attempt at maximizing well-being
and belonging.
54
The generally acceptable principle on which the distribution of the national debt and moveable national resources
ought to be divided is that of equity (Zimmerman, 2006, 224-5).
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Contrarily to Anna Stilz, however, I do not believe a series of sustained votes over a short
period of time (a few months, perhaps a year) is necessary (2014a, 36). Indeed, since the political
mobilization of the nation for secession already needs to be sustained over the ‘recent past’ for it
to be a legitimate candidate for secession, a series of sustained votes over such a limited period
should not bring added legitimacy to the result of the vote, and would raise the question of how
long ought an alienated nation be kept in a position where it is not recognized on a equal basis to
other citizens’ and where it does not feel like it belongs. I argue that this should be avoided as
much as possible, and a legitimate vote to secession enacted as early as it is reasonable for it to
be the result of a due process.
It is true that the argument made here relies heavily on self-expression of dissatisfaction of
alienation, including in voting on the issue, as well as on an intersubjective conception of the
nation, leading to an ineliminable degree of arbitrariness, or at least deep subjectivity, in trying to
discern the ‘authentic voice’ of nations (Buchanan, 1991, 143). However, the ‘biased referee’
objection to a referendum, for example, could be alleviated if the domestic constitution stipulates
that the country’s judiciary is to be used in determining if the nation is a relevant agent for
secession, and if the referendum was conducted in an appropriate manner (Buchanan, 1991, 1389). And, in order to ensure that the judiciary’s interests, possibly closely tied up with those of the
existing state, do not become another biased voice, an international arbiter ought to supervise and
assist in the proceedings (Buchanan, 1991, 139). Furthermore, while voters in a referendum may
take personal interests, notably pecuniary, into account when casting their vote, their primary
focus will be put on the interests of the community, since they participate as members taking part
in a political project, part of a collective decision-making process (Newman, 2004, 66).
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It is also true that constitutional change can be quite challenging to implement, especially
since the amendment mechanisms of contemporary constitutions are often very demanding, and
may require a significant majority or even complete consensus from sub-state units to consent
and approve the amendment (Moore, 2003, 110). Yet, no matter how arduous, if the argument
made here is right, there are significant moral imperatives to the incorporation of a secessionist
clause in domestic constitutions, as well as a group right to secession in international law.
There are nevertheless several arguments mounted against the institutionalization of a
domestic right to secede that need to be addressed. First, it is feared that recognizing a domestic
right to secede would “subvert democratic deliberation by diminishing incentives for opposing
groups to seek accommodation” (Orentlicher, 2003, 29). In such a scenario, alienated national
groups could thwart the democratic process by refusing to cooperate until their views prevail,
pressuring the parties with the threat of secession. On the contrary, however, I take an
institutionalized right to secession as a tool that would ensure that a democratic process is to be
followed in resolving secessionist questions, including in negotiating the terms of an eventual
secessionist arrangement. The right to secession argued for here is a negotiated rather than
unilateral right to secession;55 such a heavily qualified right to secede would prevent ‘exit’ from
being too easy, and would ensure the use of ‘voice’ (Buchanan, 2003, 247; 1998b, 22).
Furthermore, the democratic principle, according to which individuals are taken as morally equal
and equally entitled to have an equal say in societal decisions, can be found, at least to some
extent and in a collective form, in claims to self-determination and secession.
55
While the right to make the claim to secession and the voting on the issue should be unilateral, the right to secede
argued for here is ultimately not unilateral, since negotiations between the parties are necessary, including regarding
the distribution of the territory, the payment of national debt, the distribution of resources, and so on.
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Similarly, it is feared that institutionalizing a right to secession violates the spirit of
constitutionalism; some have argued that such a clause would increase the chances of
factionalism, reduce the willingness of parties to compromise, lead the topic of secessionism to
permeate every day politics, create incentives for strategic, uncooperative behavior and endanger
long-term stability (Norman, 2003, 213; Sunstein, 1991, 634). In fact, however, a constitution
should address pluralism and overlapping claims of self-government and determination on its
territory, and it is logically required that constitutionalism must be concerned not only with
creating and upholding a political order, but also with dissolving it (Norman, 2003, 219; 2006,
202; Brandon, 2003, 274). Indeed, the claim of the threat of the secessionist clause on
constitutionalism has been refuted, notably by the Supreme Court of Canada in its Reference re
Secession of Quebec, where it determined that secession is not contrary to the fundamental ideals
of constitutionalism (Supreme Court of Canada, [1998] 2 S.C.R. 217; Norman, 2003, 213). On
the contrary, the Court found that
our democratic institutions necessarily accommodate a continuous process
of discussion and evolution, which is reflected in the constitutional right of
each participant in the federation to initiate constitutional change. This
right implies a reciprocal duty on the other participants to engage in
discussions to address any legitimate initiative to change the constitutional
order. A clear majority vote in Quebec on a clear question in favour of
secession would confer democratic legitimacy on the secession initiative
which all of the other participants in Confederation would have to
recognize (Supreme Court of Canada, [1998] 2 S.C.R. 217).
Moreover, it is not clear that a secessionist clause would undermine the goal of deliberative
constitutionalism (Norman, 2003, 215). In fact, Norman argues that for secessionist and the
central government to commonly agree on a constitutional change such as a secessionist clause
could represent a powerful symbol of cooperation and assent, and would simultaneously
recognize the legitimate nation mobilized for secession as a full partner in the state enterprise. It
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could even lead to trust-building between the parties, and, rather than lead to a new constitutional
order and two independent states, could promote constitutional change and the continuity of the
existing state boundaries and jurisdictional authority (Norman, 2003, 224). Furthermore, if we
accept that the existing liberal democratic state is only partially legitimate, then the existing
constitution should not be assumed to be inherently valuable, especially in the case where
wronged groups were forcibly incorporated in the constitutional order.
Finally, it has been argued that secessionist claims grounded in a nationalist sentiment are
likely to lead to the creation of authoritarian social arrangements at independence (Orentlicher,
2003, 29). However, the right for secession argued for here is heavily qualified; the democracy
requirement as well as the ‘objective legitimacy’ criterion imposed on the seceding nation here in
order for it to be a legitimate candidate for secession would protect against such an occurrence.
2.3 International institutionalization of the legal moral right to secession.
2.3.1 Secession in existing modern international law. In the same way that most constitutions are
found lacking in their treatment of secessionism, the extension of the right to self-determination
to secession in international law has been inconsistent since 1945, although this is partly
attributable to the evolution of the principle of self-determination itself (Crawford, 1979, 358). In
fact, it is only in the postwar, decolonization context that the principle of self-determination
became law, and became considered as being enjoyed by groups that can make a free and
effective choice of political representation in the territory they occupy (in this case, one need not
address the question of secession). In principle, it is only if a ‘metropolitan’ state forcibly denied
the right of groups to make such a choice that it violated the recognized right to selfdetermination, engendering a presumption in favor of the group seceding as long as the seceding
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government could be considered properly representative of the people (Orentlicher, 2003, 22;
Crawford, 1979, 261). However, not only has the application of these principles not been
unequivocal, but altogether different considerations apply to groups attempting to secede not
from a metropolitan state, but from a self-determining unit (Crawford, 1979, 262-3). While selfdetermination in the decolonizing period had acquired the status of customary international law,
and while secession was generally taken as acceptable in cases of colonial domination, unlawful
military occupation or forcible annexation, and where a racial, religious or ethnic group is denied
political rights by the central state, there exists no consensus on how to legally address the
content and scope of self-determination beyond decolonization (Buchanan, 2003, 253; Nanda,
1981, 259; Brilmayer, 1991, 177).
It is only in the late 1970s and 1980s that the right to self-determination was extended
outside of the colonial context (disregarding the fact that colonialism might still be ongoing,
notably for indigenous peoples) (Koskenniemi, 1994, 242). And still, modern international law
does not provide any positive right to secession; an internal right to self-determination has been
established, but the recognition of this right external to the pre-existing state has yet to be
granted. Nor does international law clearly condemn secession, although it does seem to regard
secessionist claims with disfavor and emphasizes the right of states to territorial integrity over
that of the self-determination of peoples (Orentlicher, 2003, 19; Buchanan, 2003, 258).56 Indeed,
existing international law language cannot be interpreted as a negative right to secession, and
even if it could, the seceding unit would then be behaving ‘illegally’, making it, at the very least,
56
The Charter of the United Nations (1945) clearly forbids the use of force in violation of the principle of territorial
integrity of states, and conventional international law prohibits unilateral secession from a democratic state.
Nevertheless, international law remains mostly silent regarding a positive right to negotiated secession (Crawford,
1979, 266; Buchanan, 2003, 258). International law also stipulates that where the existing state respects the internal
right to self-determination and the human rights of its members, unilateral secession would amount to a violation of
the principle of self-determination, which my account takes as too narrow an understanding of self-determination
(Dugard and Raic, 2006, 106).
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a subject of the law (Crawford, 1979, 266). This means that “secession is neither legal nor illegal
in international law, but a legally neutral act the consequences of which are, or may be, regulated
internationally” (Crawford, 1979, 267-8), which seems entirely insufficient to frame secessionist
demands and organize the international response to secessionism. International law, too
restrictive and disorganized, is ill-equipped to deal with secessionist demands, heeding on the
urgency of its institutionalization.
2.3.2 The need to institutionalize the moral group right to secession in international law. There
is nevertheless room for optimism and progress. According to Diane F. Orentlicher, a few recent
secessionist successes such as that of Eritrea and East Timor have shown the possibility to
realign law and policy domestically and internationally when it comes to secession (2003, 19).
This is good news, since the institutionalization of the moral group right to secede appears
crucially necessary for its consistent and proper application, as well as its enforcement.
Realistically, an internationally recognized right to secession seems needed to ensure that it is
upheld where domestic institutionalization does not exist; if a central government is not obliged
by its domestic law to engage into negotiations with the nation making self-determination claims,
there are currently no rules or principles in international law compelling it to do so (Kohen,
2006, 18).
But in fact, beyond the primary, moral incentive for institutionalization and the more general
incentives already discussed, there are more instrumental, and even remedial, incentives for
institutionalizing a right to secession in international law specifically. Indeed, it even appears
rational for states to institutionalize an international right to secede. One such incentive is the
need to clearly lay out an organized and uniform approach to secession, to specify standard terms
on which secession could legitimately be negotiated as well as the criteria the group seeking
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secession (or at least self-determination) needs to fulfill in order for secession to be a morally
acceptable option (laid out in Chapter II). Entrenching norms of secession in international law
would allow for the standardization of domestic rights to secession and constitutional
secessionist clauses across the board. Moreover, a moral, group claim right to secession
recognized in international law would bind states, which would then have to respect the right to
secede, the duties attached to it, and would have to ensure that their domestic law is compatible
with the right to secede (Lerner, 2003, 12). Ultimately, “by conferring legitimacy on a certain
type of action [such as moral secession], international law reduces the costs of performing them
and increases the costs of resisting them” (Buchanan, 1998a, 238).
There are nevertheless arguments opposing the institutionalization of an international right
to secede. In an similar argument as to why states might be reluctant to incorporate a secession
clause in their domestic constitutional law, and despite the numerous incentives that appear to
make institutionalization advantageous for states, it has been said that it is pointless to argue for
the institutionalization of a right to secession at the international level, since states, as authors of
international law, would never collectively agree to such a possible violation of their territorial
integrity, which is paramount to the recognition of their equal sovereign jurisdictional authority
(Kohen, 2006, 6). This is a reasonable concern given their history of colonialism and domination
and the observable delay in the recognition of group and minority rights in international law
(Lerner, 2003, 29).57 But while some might see this as a practical impossibility of the
international institutionalization of a right to secede, however, I take it as participating in the
57
It is telling that the discussion regarding the institutionalization of a moral group right to secede in international
law rarely links the morality of secession to an implementation mechanism. One notable exception is David Copp’s
assessment of the morality of secession; he argues for legal regulation of secession when made for legitimate moral
claims, including assisting transitional negotiations, and suggests adding this to the duties of the International Court
of Justice, with the United Nations monitoring the plebiscite. He however insufficiently justifies why secession is
moral (Copp, 1998, 219, 232).
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argument for the need to stress and recognize the morality of the group right to secede and for
incentives to be put in place for states to perform accordingly. Indeed, to accept that states as
authors of international law are unlikely to easily recognize an international right to secession
eschews the issue of the partial legitimacy of most existing states, whose boundaries were drawn
arbitrarily and whose authority was sometimes obtained illegitimately, but, more importantly, it
ignores the role international law can, and should, play in moral progress (Buchanan, 2003, 250).
Additionally, Allen Buchanan has argued that, due to the gap that exists between ‘moral
right’ and ‘institutional morality’, a non-institutional theory of secession cannot lead to a moral
and practical institutional theory of secession at the international level, because it fails to avoid
perverse incentives and does not build on the most morally relevant features of international law
(Buchanan, 1998a, 227-8). For Buchanan, then, institutional considerations need to be taken into
account from the beginning of theory-building in order to be of some use in reforming or helping
in the progress of the international legal morality and, for him, institutional considerations are
more urgent and significant than moral ones (1998a, 228). But there is no reason for institutional
reasoning to be constrained by realpolitik (Norman, 1998, 47). Indeed, I disagree with Buchanan,
and believe his view understands theory-building and the purpose of international law
backwards. While I take it as crucial that theory-building takes practicality and feasibility into
consideration, it should be from a moral point of departure, based on ethical underpinnings; it is
only after having identified the relevant moral grounds on which moral behavior can be modelled
that one must evaluate how such moral principles can be enacted and implemented in practice. It
is in identifying the morally right principles that one can observe how the existing international
legal system may be found lacking, as I have argued it is with regards to the right to selfdetermination, to secession, and the rights of peoples. And it is in adjusting the system to fit
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those moral principles as much as it is reasonably morally and practically possible that the
international legal system will come to reflect morality and moral progress. It is not because the
principle of the territorial integrity of states has so far mostly taken precedence on that of selfdetermination that it should remain that way. In fact, I have argued that to take the existing state
system and existing boundaries of most state as legitimate, and to perpetuate the statist status quo
is, in fact, morally mistaken. In light of the partial legitimacy of most liberal democratic states,
taking the sovereignty of the state as more valuable, or as taking precedence over group-selfdetermination appears morally misguided.
2.2.3 Third-party mediator. Finally, there is a dire need for a concrete prescription for a
supervisory organ responsible for adjudicating between the parties’ claims in order to make
secession possible,58 for a mechanism entailing clear obligations and tools in order to make
institutionalization. It is unlikely that secessionist claims could be settled fairly and without
much bias in the absence of such an international mediator intervening in order to minimize the
chances of deadlock, to promote a mutually acceptable outcome, notably by building strong
incentives for mutual accommodation in international law tradition and arbitration, as well as in
most likely elevating the discourse and acting as a neutral arbiter on the more subjective or
disputed terms of the negotiation. Consequently, the terms of the ‘political divorce’ should be the
result of a negotiated process arbitrated by a neutral third party, either by an international organ
created for this sole purpose, or by secession being added to the jurisdiction and the list of duties
of an existing international organization or tribunal such as the International Court of Justice
(Orentlicher, 2003, 34; Buchanan, 1998a, 260).
58
Indeed, since, as it has been argued here, it must not be assumed that the new state boundaries should respect
earlier administrative boundaries, which were often drawn morally arbitrarily and were found only partially
legitimate (Moore, 2001, 153).
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This does not mean that mediation should be made a compulsory arbitration in the sense that
the final decision would be solely in the hands of the third party, as secession ought to remain a
negotiated arrangement between the parties involved. Nevertheless, mutual consent between the
existing state and the self-determining nation would not be needed per se (the existing state must
accept the legal right to secede), nor could the larger state outwardly oppose secession without
incurring severe penalties and sanctions from the international community – although I do not go
as far as suggesting forceful intervention of the international community (Buchanan, 1998a, 2601). A third-party mediator would both serve to alleviate the pressure put on the domestic
judiciary and legal order while approximating the enforcement of the rule of law (Buchanan
1998a, 161). This, however, regards one of the fundamental shortcomings of the existing
international legal system, and there are currently no prospects of implementing such an
enforceable mechanism making the respect of recognized rights unavoidable (Margalit and Raz,
1990, 464; Dugard and Raic, 2006, 109-10).
Ultimately, if we accept the argument made here and evaluate my account of a moral, group,
legal right to secession vis-à-vis Allen Buchanan’s criteria for a morally right and progressive
theory of secession, it appears this theory of secession stands the test, could, and should be
internationally institutionalized. First, while it might be argued that it does not meet the ‘minimal
realism’ criterion, as it is unlikely that states will adopt such a principle that would threaten their
territorial integrity, I believe it is not impossible for international law to recognize a moral group
right to secede for all the reasons listed above, as it may in fact help prevent secessionism, but
would also allow for a necessary clear and standardized response to secessionism. Moreover, I
take such a moral right to secession as serving better values than the status quo would
(Buchanan, 1998a, 237).
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Second, I take my account of a right to secede as meeting the ‘consistency with wellentrenched, morally progressive principles of international law’ criterion. Buchanan uses this
criterion to show how he takes a primary right to secession as problematic, because it would
undermine “the protection of individuals’ physical security, the preservation of their rights and
the stability of their expectations” as well as fail to provide “an incentive structure in which it is
reasonable for individuals and groups to invest themselves in participating in the fundamental
processes of government in a conscientious and co-operative fashion over time” (Buchanan,
1998a, 241). However, while I agree that the effective enforcement of the legal order requires
effective jurisdiction, such effective jurisdiction needs to be legitimate as well. The issue is that
Buchanan defines as state as illegitimate only if it threatens the lives of a significant portion of
its population, or if it exhibits institutional racism towards a particular group (Buchanan, 1998a,
245). This is a very narrow conception of illegitimacy, and my account has shown that the state
only enjoys partial legitimate authority, and in fact does not exercise legitimate authority over
national sub-state groups struggling for their self-determination if they do not subjectively affirm
it. Therefore, while some territorial integrity is necessary, I fail to see the case in favor of the
status quo, and I take the redrawing of existing boundaries as sometimes necessary in order to
comply with existing (and prospective) international law principles. Furthermore, alienated
nations are unlikely to participate politically in a ‘cooperative’ and conscientious’ fashion in a
state to which they do not feel like they belong, to a state that they do not see as representing
them and their interests (Buchanan, 1998a, 243). As such, in order to respect the morally
legitimate interest in the integrity of political participation, a morally progressive interpretation
of the principle of territorial integrity might be necessary, with a broader definition of
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illegitimacy than that which Buchanan adopts, making self-determination, and perhaps secession,
morally required at times.
Third, again, I do not take a primary, moral group right to secession as engendering
insuperable, ‘destructive’ incentives. Rather, the heavily qualified right to secede argued for
here, would create further incentives for states to uphold basic justice for internal nations, to
uphold a statist form that it would be reasonable for said nations to objectively and subjectively
affirm. It would also create incentives to create intrastate self-determining institutions aimed at
fostering belonging among the alienated national groups, and which might thus help prevent
secessionist, rather than self-determining, demands. Buchanan argues that a primary right would
lead states to behave in ways that would prevent nations from becoming legitimate claimants of a
right to secede and prevent them from developing the necessary economic and political
institutions (Buchanan, 1998a, 246-7). Such behavior, however, would make these nations fall
into the ‘wronged’ category, as the state would fail to respect their members’ basic human rights,
and, in the absence of the moral right to secession argued for here, would make their right to
secession remedial (which, curiously, Buchanan argues in favor of).
* * * * *
To conclude, it may be true that remedial right-only theories of secession are more morally
accessible than primary right theories, since they limit the legitimate right to secede to principles
of law, especially international law, already recognized, which are narrower conceptions of state
legitimacy, of self-determination and of secession than what I have argued for (Buchanan, 1998a,
249). However, if my moral argument is correct, these narrower principles are morally lacking,
and thus law is, too. And while it remains profoundly difficult at this stage in the reflection to
take a definitive stance regarding the implementation of a legal right to secession in international
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law,59 since any argument based on the eventual consequences can be no more than an educated
guess, adding to the discussion remains indispensable for it to be able to move beyond
guesswork towards a more tangible articulation of the place of a right to secession in
international law (Altman and Wellman, 2009, 64). This is especially important because
international law has always been influenced in an important degree by academic and scholarly
writing, which has recently become much more open to the principles of secession and popular
sovereignty (Horowitz, 2003, 201, 204).
In sum, I have showed that the benefits of institutionalizing a right to secede far outweigh
the perverse incentives that it might generate. While the institutionalization of a moral group
right to secede ought not to be made at the price of undermining the effectiveness of international
law and its duties in protecting individual rights and in securing global peace (Altman and
Wellman, 2009, 55-6), the right to secession should not remain in a legal vacuum. To leave the
legalization and institutionalization of the right unaddressed would be too costly in terms of
uncertainty, instability and unfeasibility. Further, it would jeopardize the implementation of what
has been argued is a legitimate group right to secede.
59
There exist a few cases of a domestic, constitutional right to secede; the former Soviet Union, Saint-Christopher,
St Kits and Nevis, Ethiopia (Norman, 2006, 176).
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Conclusion
I have argued that a moral right of nations to collective self-determination is based on the
intrinsic value of the nation and the instrumental value of national belonging to individual
members. The legitimacy of states is partly dependent on the subjective affirmation of the state
by the population it governs, and the lack thereof on the part of alienated national groups
contained in the existing state is a sufficient ground to hold the existing state to a duty to allow
and negotiate the secession of relevant nations. This moral duty of states may even entail a duty
of assistance to help nations achieve conditions for secession if the legitimacy of secession is
partially based in unjust treatment of the nation by the state.
My account of a moral right to secession should not however be understood as glorifying or
needlessly advocating for secession. My argument is ultimately in favor of maximizing national
belonging, understood as positive horizontal and vertical relationships, with national members
and the state respectively. Such feeling of belonging may well be felt and experienced in
institutional arrangements falling short of secession, such as intrastate autonomy, special
representation rights, federalism and devolution of power (Stilz, 2014a, 6-7). However, if a
relevant, politically mobilized, objectively legitimate nation that is subjectively affirmed by its
members subjectively rejects the institutional form under which it lives, secession may be found
to be the morally appropriate form of self-determination needed to foster the feeling of being ‘at
home’ and identification to its state.
And if the right-constituting norms and relevant criteria identified here are correctly applied
in the institutional framework and legal scheme described, the principle of group selfdetermination and a group right to secession should be respected as they morally ought to be
without being unduly costly, either morally and in weighing in the interests of others. Indeed,
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secession from a reasonably just democratic state may be regrettable, but is not evil, nor a
violation of an absolute moral prohibition (Norman, 2003, 204). On the contrary, as I have
argued, it can be morally right if it allows for a relevant nation to feel national belonging and
maximize national flourishing.
Whether one intrinsically values the nation or supports secessionism or not, secessionist
politics remains a powerful and widespread phenomenon for which an organized, standardized
response is needed in order to safeguard principles of legitimacy, feasibility and stability. There
is thus a presumptive case for international legal reform and the institutionalization of preemptive legal provisions for a group right to secede, and the burden of proof is on those who
would oppose the institutionalization of a legal group right to secession (Wellman, 2005, 161,
168). Further, the advantages of legal institutionalization far outweigh the perverse incentives it
might engender. In fact, international law can become an indispensable tool in providing
powerful incentives for reforming and improving the behavior of existing states, as well as those
that would be born out of secessionism.
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