Department of Political Science
Chair Comparative Public Law
THE RIGHT TO SECEDE: A COMPARATIVE ANALYSIS
SUPERVISOR
Prof. Rizzoni Giovanni
CANDIDATE
Montani Davide
Student Reg. No. 622962
CO-SUPERVISOR
Prof. Antonelli Vincenzo
ACADEMIC YEAR
2014-2015
1
Index
ACKNOWLEDGMENTS ........................................................................ 5
INTRODUCTION .................................................................................
7
CHAPTER 1
Historical and Theoretical Framework of the Right to Secede .............
11
1.1 The origin of the term Secession .....................................................
11
1.2 Political philosophy, federalism and secession in the 17th century.
Althusius, Hobbes and Bodin compared. .............................................. 15
1.3 The Right to Secede and International Law ....................................
23
1.4 Theories of Secession in comparison ..............................................
33
CHAPTER 2
Secessions in the 19th century. US and Switzerland: a comparison ....
39
2.1 The US Constitutional Debate .........................................................
39
2.2 US Policies and Jurisprudence on Secession before 1861 ..............
45
2.3 The Secession Crisis of 1860-1861. Background and Consequences
................................................................................................................ 53
2.4 The League of Sarnen and the Sonderbund. Secession in the Old
World .....................................................................................................
60
CHAPTER 3
Secessions after the end of the Cold War. A new epoch for secession in
Europe ................................................................................................... 67
3.1 The right to secede in socialist law .................................................
67
3.2 Secession and self-determination for who? The collapse of the
former Yugoslavia and the Kosovar secession .....................................
72
3.3 The dissolution of the USSR and the proliferation of ethnic secession
in the 1990s ........................................................................................... 83
2
3.4 Secessions in the Former USSR, a never-ending story. Ukraine:
Crimea and Donbass .............................................................................
94
CHAPTER 4
Democratic approaches towards the right to secede: Scotland,
Catalonia, and the EU ...........................................................................
101
4.1 The Constitutionalization of the right to secede: the Case of Scotland
............................................................................................................... 101
4.2 Catalonia: Bodinian State vs. Secession ........................................
107
4.3 Secession and the nature of the State: the European Union .......
113
CONCLUSIONS ..................................................................................
121
Bibliography .....................................................................................
127
Webography .....................................................................................
139
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SUMMARY
The main purpose of this Thesis is to analyze the nature of the right to secede and how
it has been treated by different systems of Public Law and by the International Law. Its
purpose is to answer to these questions: is the legitimization or constitutionalization of
the right to secede in the Public Law of the States an advantage or a threat for
democracies, and, more broadly, to the nature of the State itself? Is the creation of new
States, through the right to secede, a threat to the Westphalian conception of the State
or will it just create new Westphalian States? On what the modern States based? Who
bears the right to self-determination recognized in International Law? How can the
principle of self-determination be conciliated with the right to the Territorial Integrity
of the existing States? Is the principle uti possidetis iuris a useful tool to handle
secessions? The use of a comparative analysis between different systems of Public Law
and between these systems and the International Law is essential to answer to these
questions. Recent events such as the independence of Kosovo, the secession of Crimea
and Donbass from Ukraine, the will of some EU member States to secede from the
Union, and the attempted secession of Scotland and Catalonia have raised once more
the importance of this topic for both Public and International Law. The Thesis has been
structured in four chapters.
The purpose of the first one is to create a theoretical and historical framework, creating
a methodology around which it will be possible to analyze the case studies of the
following chapters. For this purpose, it is given an etymological analysis of both the
terms secession and self-determination. On the one hand, the former derives from the
Latin word secession, and is the action of those people who separate or withdraw from
something. Originally it was mainly identified with the spiritual word of the monks
who decided to withdraw into the desert. Nevertheless, it acquired a political
connotation with the secessio plebis that took place in ancient Rome in 494 B.C. On
the other hand, the latter is a product of the 19th century and was linked by the First
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Communist international to the rising idea of the nation (in that case the Polish one).
Self-determination has two sides, an internal one that means self-government or
autonomy, and an external one linked to independence and then secession. Both
concepts (secession and self-determination) are lined to the idea of freedom, and in the
external side they overlap. The importance of freedom in the political theory and
philosophy was deeply analyzed in the 16th-17th century. Althusius, Hobbes and Bodin
have all tried to find when and how it was possible to resist to the political power,
finding different answers. From the medieval Pauline conception of the political power,
where no resistance was allowed , since only the citizens, and not the rules who were
chosen by God, could do something wrong, to Calvin and the Monarchomachs, the
idea of the political power changed into a fiduciary pact between the ruler and the
people. Behind this idea there was the purpose to change the relationship between ruler
and ruled into something similar to a private contract, with clauses that once broken
bring to the extinction of the contract and then to secession. Johannes Althusius,
considered by many the father of modern federalism, conceived a sort of social
federalism, which resembles more the modern idea of subsidiarity, in which
decentralization is the source of guarantees for civil and social rights from a tyrannical
authority. This federalist structure is the product of a collective contract. In Althusius’s
view, the right to secede from the contract that originated the social order is a right that
belongs to the Ephors, those that have been delegated by the people to serve them such
as controllers of the King and of public powers. The Ephors, as individuals, are
authorized to protect the province against a tyrant King and, if necessary, to declare
themselves independent. The Althusian theory was used to interpret the constitutional
pact as a contract inside Federal States (such as the US or Switzerland). For Althusius,
Calvin and the Monarchomachs, secession does not create something different form
the Westphalian state. The right of secession does not pass over the Westphalian
conception of the state, but it just creates new Westphalian states. In opposition to these
theories, the unitary state theorized in the Leviathan became THE modern conception
of the State. The Leviathan is, in continuation with the medieval Pauline doctrine, a
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body from which secession is impossible without destroying the social order and
degenerate into the state of nature. Similar ideas were expressed by Jean Bodin. For
him the Monarch was the only supreme authority, in both religious and political issues.
The Monarch incarnates the State, and the State, as the bearer of sovereignty, is the
only authority able to guarantee peace. Bodin argues against democracy, that would
generate disorder, or any form of mixed government, such as the Althusian federalism,
because it would denied the true meaning of sovereignty. The dichotomy between the
Althusian and the Hobbesian/Bodinian conception of the State will be used to analyze
the different approaches taken by Public Law in relation to secession. The analysis of
International Law, which is the sum of the behavior of all states, which means that rule
the international society in a way conform to the will of all states, in relation to
secession is also essential. Three cases have been taken into consideration: the Åland
Islands Question, the UN opinions toward self-determination and colonialism, and the
secession of Quebec from Canada. The first case was handled by the Covenant of the
League of the Nations in 1919-1921 to regulate the Wilsionian principle of selfdetermination established after WWI. A commission established in 1921 recognized
that the principle of territorial integrity comes after the interests of a given population.
However, a last resort right to secede exits when the internal self-determination
(through autonomy or self-government) is impossible. The second case analyzes the
UN Charter and the UN approach toward colonialism. The Charter recognizes “the
principle of equal rights and self-determination of peoples”. Anyway, selfdetermination was in 1945 a right of the states to self-rule, not a right of the peoples to
independence. This status changed in 1950s with the preparatory works over the
ICCPR and the ICESCR. Through these documents the right to secede, or to
independence, was recognized to the colonial peoples, but not to the national minorities
in the motherland. Of pivotal importance is also the Uti possidetis juris principle, which
regulates secessions turning administrative boundaries into international borders. The
ratio behind this principle is that the stability of the frontiers means peace. However
this principled has proved fragile when different ethnic groups found themselves in a
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single state or when a united ethnic group becomes separated by international borders.
The third case is the judgment of the Supreme Court of Canada on the secession of
Quebec. The most important opinion given by the Court is that regarding the existence
of a right to secede in International Law. According to the Court: “A right to secession
only arises under the principle of self-determination of peoples at international law
where "a people" is governed as part of a colonial empire; where "a people" is subject
to alien subjugation, domination or exploitation; and possibly where "a people" is
denied any meaningful exercise of its right to self-determination within the state of
which it forms a part” (Canadian Supreme Court Judgment 1998, par. 155). The Court
also recognized that an illegal ex-ante facto secession could be legitimized ex-post
facto by the international community. According to International Law then, while in
the case of colonialism the states eventually accepted unanimously to consider
secession legal, the same cannot be held true regarding minorities present in the
homeland. Both in the Åland islands question and in the case of Quebec the right to
secede remains possible only when all the other “internal remedies” are exhausted. This
gives to the Right of territorial integrity and to the principle Uti possidetis juris
supremacy over the right of people to self-determination. To further categorize the
different secessionist cases, it has been used the classification of Margiotta according
to which it is possible to distinguish between three theories of secession. The first one
is the national self-determination theory of secession, for which secession is an
extension of the self-determination principle on non-colonial peoples. All peoples
(intend as culturally homogeneous groups) should bear the right to secede. The second
one is the choice theory of secession. According to this theory, it not necessary that the
group that wishes to secede is a nation. The choice of some given people (even
ethnically patchy) to have their own state is enough to guarantee them the right to
secede. The problem with these theories is the impossible universalization of the right
to secede, giving the right to secede also to scattered minorities or groups. The third
one is the just-cause theory of secession. In this case, secession is possible only when
a state does not recognize the identity of a people or its internal self-determination.
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Secession is then only as a “last resort” option. The problem raised by this theory is
that it is not easy to define when a secession is “just”, and a given population could
already be near extermination when it is legally granted to it the right to secede (as
tension in given region could quickly escalate to catastrophic level, has it happened in
Rwanda in 1994).
The second chapter analyzes two historical case studies, the secessionist movement in
the 19th century US and Switzerland. These two countries have been chosen because
they have been both characterized by a strong debate around the nature of the
Constitution and of the State. In both cases, a Federal/Unitary faction was against a
Confederal faction. In the US the debate around the meaning of the Constitution, and
if the States created the Union or vice versa, characterized the first 70 years of live of
the country. For many States and authors the Constitution of 1787 was a contract (as
theorized by Althusius in the 17th century). If the Constitution was a contract between
the States that had signed it, it is then possible for a state to withdraw from the contract.
This was the main argument of the State Rights theorists. Opposite to this vision, the
Federalists believed that the US Constitution had established the supremacy of the
Federal Organs (the Congress, the President and the Supreme Court) over the States.
When the Union was formed in 1787 the states that decided to do not be part of the
Union, North Caroline and Rhode Island, were left to follow their own path as
independent States, and joined the US by their own will two years later. The US
Constitution’s preamble, with its emphasis on the people as the bearer of sovereignty,
pushes toward the idea the representatives of the States, the Governors and the State
legislatures are the Althusian Ephors, those who have signed the Constitutional
contract and held the Right to secede from it. Historically it is possible to determine
that the North American States existed as separate and well-defined entities long before
1787, and had their citizens a sense of statehood already under the British rule. Legally
two important acts to take into account are the Virginia and Kentucky resolutions of
1798-1798. These two resolutions were done to nullify the effects of two acts of John
Adams administration, the Alien and Sedition Acts. As these Acts violated the freedom
8
of expression granted by the First Amendment to the US Constitution, the States itself
moved to defend their citizens against an oppressive Act, such as good Althusian
Ephors, nullifying their effects. Great importance is given, in the Kentucky
Resolutions, to the Tenth Amendment of the US Constitution, which states the implied
power principle. The fact that the implied power are left to the States and not to the
Federation is a way to say, for the State Rights theorists, that the bearer of sovereignty
were the States and not the Federation, and that the possibility of a member State to
secede was legally possible. Combing the Tenth Amendment with the principle
delegatus non potest delegare, means that the powers not delegated to the Constitution
belong to the States and to the People of the States. If the Constitution was a contract
the States could naturally take back those powers they have delegated to it, and a form
of this could be through Secession. For what concerns the US jurisprudence over the
issue of the right to secede before the Secession War, an interesting case to analyze is
that of Gibbons v. Ogden of 1824. In this case the US Supreme Court affirmed that the
right to regulate navigation belonged to the Federation, as it was implicitly part of the
commerce clause (Article 1, Section 8.3 of the US Constitution), in the same way the
right to secede implicitly belonged to the State interpreting in the same way the Tenth
Amendment. In the case Worcester v. Georgia of 1832 the Supreme Court defined the
supremacy of the Federation over the relationship with the Indian tribes. Nevertheless,
both the state of Georgia and President Andrew Jackson ignored the ruling. Then while
the Supreme Court was trying to favor the Federalist view of the US Constitution, the
behavior of the other political organs suggest that the State Rights theory was strongly
shared in the US Constitutional framework before 1861. In 1828-1832, during the
nullification crisis, the US vice-president John Caldwell Calhoun affirmed that it was
possible for the States to nullify the effects of any Act of the Federal government that
was unconstitutional, or tyrannical in an Althusian view. Nullification and Secession
in 1832 US became synonymous, as when the former is impossible the letter is the only
solution for the States to safeguard themselves and their citizens. The State Right v.
Federalist debate found new fuel in 1830 with the Hayne-Webster debate on the nature
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of Union. The secession crisis of 1860-1861 was unlashed by the fear the North could
lead a tyranny of the majority against the South. The secessionist States reused the
concept “We the People” presents in the preamble of the US Constitution to reaffirm
that the People were the citizens of the States, which are represented and safeguarded
by their own States. This States have signed a contract with the other States in 1787,
which have formed a Union. Nevertheless, the membership to this Union could always
be withdrawn. Both the US Constitution and the Constitution of the Confederate States
of America never allow or deny the right to secede explicitly. Anyway, the latter has a
strong emphasis over the sovereignty of the member States. The US Secession War
affirmed the supremacy of the federalist view of the US Constitution and made the
right to secede illegal. The fact was clearly affirmed in the case Texas v. White of 1868,
in which secession was declared illegal in the US. The case of Switzerland is quite
similar. The tension between the Diet (the Federal Organ) and the Cantons in the 19 th
century resemble the US Constitutional debate on the nature of the Union. Before the
Napoleonic invasion of 1798, the Cantons did not have a formal Constitution, but were
kept together by an agreement of common defense of international nature. In 1815, the
Federal Treaty restored the ancient Swiss Confederacy after the Napoleonic era. The
1815 Federal Treaty was adopted without a referendum, and in it the Diet recognized
the Cantons as the sovereign body that created the Confederacy. The country anyway
was fractured between the conservative Catholic Cantons (in favor of a confederal
structure), and the Radical Protestant Cantons (in favor of a federal structure). The first
attempt of the Catholics Cantons to secede in 1833 (the league of Sarnen) was dissolved
by the Diet as it was harmful to the Federal Pact itself. In 1845 the fear that the
Protestant would attempt to change the Constitution in a more centralized way, brought
to the creation of the Sonderbund (or separate league). In 1847 the Diet recognized the
Sonderbund as illegal. Anyway, the closing of the convents in Aargau in 1841, the
protestant invasion of Lucerne in 1845, the Diet legitimization of intra-Cantonal
secession harmful to the Catholics Cantons, bring in the question if the league of
Sarnen and the Sonderbund were just attempts of the Catholics Cantons to act as
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Althusian Ephors. Anyway, the force of arm resolved the conflict, and a new
Constitution was approved in 1848.
Chapter three focuses on the secessionist movements that have characterized former
Yugoslavia and USSR between 1990 and 2015. It has been chosen to analyze these
cases together for their common background, which lies in the Socialist Law on
secession. Both the Yugoslav and the Soviet Constitution recognized the right to secede
of the member states of the federal union. Anyway this right must be analyzed in the
light of the Socialist Law. For Lenin what matters is the creation of a huge federation
of workers. Then secession, as interpreted by a nationalist view, is antithetical to the
cause of the global revolution. The nations is bourgeoisie tool, useful to achieve the
final objective, a global communist state. The workers cannot revolt if they are subject
to foreign domination. This is why the Communist International invented the right of
self-determination of people. The right to secede, or to independence/selfdetermination for Lenin, is a tool for a greater cause in the Socialist law. Secession is
a necessary tool to form a greater Union. The idea to introduce the right to secede in
the USSR Constitution was not intended as a way to grant to the member States a right
to get out from the union. The different Soviet/Yugoslav Republics had already used,
once and for all, the right to secede to join the USSR/Yugoslavia. This means that the
presence of an explicit right to secede in the Soviet/Yugoslav Constitution did not
legitimize the secession of its member states. Regarding the case of Yugoslavia, the
fact that secession was illegal in the Yugoslav law is highlighted by article 5 of the
1974 Constitution that stated: “The territory of the Socialist Federal Republic of
Yugoslavia is a single unified whole and consists of the territories of the Socialist
Republic”. Particular attention has been given especially to the opinions of Badinter
Commission. The Commission never used the term secession, but that of dissolution
referring to the secession in Yugoslavia in 1991-1995. Furthermore the date in which
Slovenia and Croatia have achieved independence (8 October 1991) is antecedent to
the date in which, according to the Commission, Yugoslavia has started its dissolution
(29 November 1991). This means that, for Slovenia and Croatia, we are facing a case
11
of secession, not of dissolution. Furthermore in its second opinion the commission
guarantees both the principle Uti possidetis juris and the right of the Serbian
populations in Bosnia and Croatia to choose their nationality, which is a contradiction
between the Uti possidetis juris principle and that of self-determination of peoples.
Moreover, in its third opinion the Commission, to justify the use of the principle Uti
possidetis juris in a non-colonial issue for the first time, uses improperly the opinion
of the ICJ in the case Burkina Faso v. Mali of 1986. In the ICJ opinion there is a clear
reference to decolonization and to an administering colonial power that decides to
release its control. It is no clear then how this case can be used as a precedent to handle
the break-up of Yugoslavia. Surely, the international recognition of the secessionist
republics, and the impossibility of the Serbs who lived outside Serbia to secede, turns
the conflict into one of the bloodiest of our time. It is possible to affirm that the option
of being part of new state, where the Serbs were a small minority, was the main reason
behind the brutal escalation of the war in Croatia end especially in Bosnia. For what
concerns Kosovo, it is possible to see that the international community is split in half
over the recognition of the secessionist republic. The independence of Kosovo,
declared in 2008, was clearly an illegal act according to Serbian Law. The opinion of
the ICJ, given in 2010, attempted to separate the issue of independence from that of
self-determination and secession. This seems to clash with the common sense (an act
of independence produces a secession) and with the practice of the UN in period of
decolonization, where the right to self-determination was a right of independence. In
addition, the ICJ does not take into consideration the General Assembly Resolution
2625 of 1970, the so-called Friendly Relations Declaration (FDR), according to which
the right of self-determination shall not impair the territorial integrity of states, and the
UN Security Council resolution 1244, which affirms the territorial integrity of Serbia.
It is unclear why to a unitary State, such as Serbia, was not recognized the right to
territorial integrity, but it was de facto privileged the principle of self-determination,
or the right to secede, of the Kosovar people. It is clear that firstly, with the secessionist
Yugoslav Republics, and secondly with Kosovo, it has been legitimized the right to
12
secede. It has been camouflaged as self-determination as in the colonial case in the
former, or as a vague concept of independence in the latter, nevertheless all (in the first
case) or many (in the second case) members of the international community accepted
it. The dissolution of the USSR and the formation of the various independent states,
today recognized by the international community, is not an interesting case in itself.
The dissolution of the USSR was consensual between the Russian Federation and each
secessionist republic. More interesting for this analysis are the numerous “subsecession” that occurred within the new-independent states. Each one of them as an
ethnic origin and, as there are seven of them, it is possible to speak of a proliferation
of ethnic secession and fit them into the national self-determination theory of secession.
The cases taken into account are: Transnistria in Moldova, Chechnya in Russia,
Abkhazia and South Ossetia in Georgia, Nagorno-Karabakh in Azerbaijan and Crimea
and Donbass in Ukraine. For all of them it has been analyzed the Public Law of the
country on which has suffered the secession and the reaction of the international
community. Particularly interesting is recognition by Russia (with three other member
states of the UN) of Abkhazia and South Ossetia in 2008. This, together with the
annexation of Crimea in 2014, bring in the question if Russia is trying to change the
common opinion of the international community on the right to secede. Anyway this
right has been already challenged with the recognition of Kosovo by more the 100 UN
member States. As in the case of Yugoslavia, the fact that administrative boundaries
turn into international borders, then the principle uti possidetis juris, was undoubtedly
the main cause behind the conflicts in the former USSR. The cases of Abkhazia and
South Ossetia and Kosovo have created a precedent in International Law. Many
secessionist states, stressing the fact that many of them were former autonomous
provinces as Kosovo, demand the international recognition of their right to selfdetermination. Regarding the Crimea and Donbass, the annexation of the peninsula
was indeed a violation for Russia of both the Budapest Memorandums of 1994 and of
the Treaty of Friendship, Cooperation and Partnership in 1997. For Ukrainian Law any
normative act of the Autonomous Republic of Crimea must be in accordance with the
13
Ukrainian Constitution and have the consent of the Ukrainian government, something
that did not happen in 2014. Anyway, Crimea inside Ukraine was an autonomous
province, as Kosovo inside Serbia, with analogues legal requirements for a possible
(even if remote because it requires to change the Constitution) independence. Why then
many states recognized the right of Kosovo to secede from Serbia and not that of
Crimea to secede from Ukraine? This cannot be justified claiming that that of Kosovo
was a remedial secession, as the ICJ as clearly denied this possibility in its 2010
opinion. As in the case of Kosovo, the situation in Crimea highlights that the
international community is fractured on the issue of right to secede, or more properly,
on how to conciliate the issue of self-determination and the right of the states to
territorial integrity. Is the association between violence and secession that has allowed
Kosovo to secede in 2008 and Crimea to commit an illegal act? Then how not justify
the secession of various region in the former USSR, including the recent secession of
Donbass in eastern Ukraine. Using the Althusian theoretical framework, we could
consider the Ephors of these regions as those who act in order to defend the local
population from foreign subjection.
Chapter four deals with the democratic approaches toward the right to secede, which
means the Constitutionalization of the right and its legal application. Of peculiar
importance is the referendum on the independence of Scotland, one of the first process
of Constitutionalization of the right to secede. The Independence referendum set out
the rule on who, when and how the right to secede can be exercised by a given
population that is not under colonial exploitation. The Scotland Act of 1998 is essential
to determine if the Scottish Parliament had any constitutional legitimacy to exercise
the right to secede. Among the reserved matters on which the Scottish parliament
cannot deliberate there the Union between the Kingdom of Scotland and England. This
clause can be interpreted in two ways. The first one in a Hobbesian/Bodinian sense,
then interpreting this Union as indissoluble and perpetual. The second one in an
Althusian sense, which means that the Union only implies that Scotland, even if
independent, must remain a realm of the commonwealth such as Australia, New
14
Zealand or Canada. Anyway, a consensual agreement was reached between Scotland
and the UK, and the referendum was possible modifying the Schedule 5 of the Scotland
Act in 2013. Nonetheless, this would not have been necessary if the Scotland Act was
interpreted with an Althusian meaning. This is confirmed comparing the Scotland Act
to the interpretation given by the House of the Lords to the Northern Ireland Act, which,
according to the House, should be interpreted in a broader and generous way. Even if
the referendum did not achieve its purpose, it is interesting that once the right to secede
to a given region has been granted, the local government could always hold a
referendum for independence. This means that a secessionist referendum could be held
continuously until the separatist movements does not reach a majority of the vote and
independence is obtained. Even if it is possible to introduce a time framing for the
referendum, there is the risk to fall in what some authors have called “Neverendum”.
The Scottish case proves that even if the right to secede in itself seems disruptive for a
unitary state it can be, nevertheless, handled inside a democratic framework.
Furthermore, in the case of Scotland, the right to secede is a useful tool to push for
greater autonomy, such as the full fiscal independence. The second case taken into
consideration in this chapter is that of Catalonia, and the different approach of the
Spanish state toward the right to secede. Catalonia is often considered a nation without
a State a fact that clearly integrates this case into the National self-determination theory
of secession. The Spanish Constitution of 1978 was an attempt to mediate between the
unitary tendencies of the Spanish State and the desire for an independent identity by
the Catalans, the Basques and Galicians. The Spanish case, however, shows very well
how difficult the Bodinian/Hobbesian concept of the State and the Althusian one can
coexist. Every step toward a greater autonomy must be detailed scrutinized by the
central government in Spain. Taking into account the Statue of Autonomy of Catalonia
is possible to see, on the one hand, a strong emphasis on the Catalan identity, on the
other hand a remind to the Spanish Constitution and the unity of the nation. The Catalan
idea anyway was that the Scottish referendum could become a precedent in Public Law
to manage the case of self-determination outside the colonial framework. Spain has
15
tried to do not create this precedent denying the automatic access of an independent
Scotland to the EU and do not recognizing the independence of Kosovo. Despite the
opposition of the Spanish government to any legitimization of the right to secede, the
Government of Catalonia decided to gather the Catalan people on a controversial
referendum on the independence of Catalonia, held on 9 November 2014. The doubts
on the referendum were raised by its low turnout, its mere consultative value, and the
fact that minors (above the age of 16) and every people resident in Catalonia (so even
immigrates that do not have Spanish citizenship) were able to vote. The jurisprudence
of the Spanish Constitutional Court has expressed on the Constitutionality of the
Catalan referendum on 11 June 2015. The court then reminds that Catalonia has part
of the unitary state that is Spain, is competent only on the matters that the central
government have delegated to it, and that no delegation of the right to secede is
conceivable under the Spanish Constitutional framework. Despite the ruling, the
Catalan government is trying to proceed with a new independence referendum, which
will be held on 27 September 2015. To avoid any stop from the central government,
the Catalan government this time will use the results of early local elections as a
political symbol of the Catalan will of independence. If the pro-independence parties
obtain the majority that would mean that Catalonia wants to be independent. It is very
difficult that the Spanish government will ever recognize the legitimacy of the vote, as
it would mine to the unity of the country, creating a powerful precedent for the different
minorities in State, such as Basque, Galicians and Andalusians. Finally it must be
analyzed the approach of the EU toward the right to secede. In the European Union,
differently from all other international organizations, the States have ceded a portion
of their sovereignty. Despite this, the Lisbon Treaty of 2009 has recognized to the
member States the possibility to withdraw from the Union unilaterally through a legal
procedure. The exit of a member State from the Union must be legally regulated for
the deep economic and political effects that the withdrawal of a member state would
cause on the entire Union. So far, the only concrete case was the secession of Greenland
from the EU in 1982, which surely created a precedent for the Lisbon Treaty clause. Is
16
then possible to ask if the presence of the right to secede inside the EU legal framework
will be a useful tool to advance the European integration (giving a chance for the
Eurosceptic countries to leave), or instead it will put an end to it. The greatest test for
this question lies in the referendum that the United Kingdom has planned for 2017,
which proves the UK commitment to interpret the right to self-determination in a
broader way. The problems related to the cession of sovereignty form the Member
States to the EU are now especially acute in relation to the Eurozone. For a Member
State it is legally possible to secede from the Union but not from only the Eurozone.
Dammann has identified three legal ways for a secession from the Eurozone. The first
option is to get out entirely from the European Union and then came back in without
reenter into the Eurozone. The second option is that all the 28 Member States agree to
change the European Treaty and create a clause to exit from the Eurozone. The third
option is based on the option rebus sic stantibus, which means that the premises that
brought to the creation of the Euro are no longer valid.
In conclusion, many Constitutions, the ones based on a Hobbesian/Bodinian approach,
recognize in the State the only structure that can save the people from disorder and
chaos. However, as Althusius has theorized, and as many cases, that has been analyzed,
have proved (especially those analyzed in chapter 3), the State itself can easily turn
into a tyrant. The final aim of the modern Constitutions, and then of modern
democracies, is to protect their citizens, and not the State. Then it is possible to affirm
that a legitimization or constitutionalization of the right to secede will improve the
modern democratic system. The fear that the right to secede is impossible to
universalize, as expressed by Margiotta, is an incorrect analysis. Even if it must be
recognized that not all the nationalistic aspirations can be satisfied at the same time,
the right to secede is nevertheless a useful tool in the hands of all groups to protect their
interests. The legitimization of the right to secede, even if materially impracticable for
dispersed minorities, is anyway a tool to exercise political influence. The right to
secede then enters into the democratic system of check and balance, typical of the
Federal States, giving to regional and local entities a power that can match with the
17
central one, assuring a more democratic framework for all the people within that State.
The right to secede will then bring to creation of new Westhpalian State, but with a
stronger democratic commitment in their Constitutions, inspired by the Althusian
theory on secession. For what concerns International Law, the principles of selfdetermination of peoples and that of territorial integrity, cannot be conciliated. The
attempt of the International Community to handle the secessionist movements behind
the principle of uti possidetis iuris has often resulted in a complete disaster.
Administrative borders, generally decided arbitrarily by authoritarian States, are not a
guarantee for peace. In some circumstances, the “civil” wars that have sparked from
the dissolution of a unitary state have been so cruel to justify secessions according to
ethnic and not administrative boundaries, then against the legal principle uti possidetis.
Then the right to secede should be legitimized by Public Law to become an effective
form of devolution, without limits by the International Law. If the right to secede is the
expression of a democratic will, it cannot be limited with the principle of territorial
integrity; instead, it should be encouraged by the principle of self-determination of
peoples.
18
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