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Federalism and Secession

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Edited By Jorge Cagiao y Conde and Alain-G. Gagnon

The controversial issue of secession has received little attention from experts of federalism. The best federal studies either evade it or dismiss it in a few lines. However, the issue of secession has been present throughout the history of federations. This book is one of the first to explore the complex relationship between federalism and secession.

The authors whose work is presented here recognize the potential of federalism as a way to organize relations between several different states, peoples, nations or territories under the same government. However, they are not naïve or idealist about the ability of the federal idea to succeed in the complex situations in which it is applied. In some cases success seems assured (the United States, Switzerland, Germany, etc.), and the merits of federalism can be showcased. But there are also failures (the former Yugoslavia, or more recently Brexit) and semi-failures that have generated turbulence in recent years in devolutive systems (Scotland in the United Kingdom, Catalonia in Spain) or federative systems (Québec in Canada).

This book provides a nuanced portrait of the issue of secession in federal contexts and lays the groundwork for questioning the still too fragile legacy of the great thinkers of federalism.

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Contents

Introduction

Territorial federalism and multinational federalism

Structure of the book

1 Federalism(s) and secession: from constitutional theory to practice

CHRISTOPHE PARENT

Introduction

1. Confederation: a “free union” that hides its true nature?

1.1 From a union of sovereign states …

1.1.1 Confederation as viewed in Kantian political philosophy

1.1.2 The concept of confederation in public law

1.2 … to a “perpetual confederation”

1.2.1 Confederal laws against secession

1.2.2 The philosophical turning-point in the 16th century: the Dutch influence

1.2.3 Universalization of the right of secession: the US Declaration of Independence

2. The federal state: an “indissoluble union”?

2.1 Federal positive law

2.1.1 Federal constitutions expressly allowing a right of secession

a) Constitutions that recognized a right of secession in the past

b) Constitutions currently recognizing a right of secession

2.1.2 Federal constitutions excluding all forms of secession

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2.1.3 Constitutions that remain silent on the question of secession

a) Interpretation by Supreme Court justices: a centripetal constitutional force

b) Federal realpolitik

2.2 Using constitutional theory to cut the Gordian knot of secession

2.2.1 The trap set by the syncretism of the federal state

2.2.2 Redefining the constitutional basis for secession

a) Partial versus total revision

b) Actual cases

2 Secession from a federation: a plea for an autonomous concept of federative secession

OLIVIER BEAUD

Introduction

1. Defining and identifying the concept of federative secession

1.1 The dominant conception of secession

1.1.1 Secession seen as the aspiration of an infra-state (or infra-nation) group to constitute its own state or nation

1.1.2 The legal dogma on secession

a) Secession is not dissolution

b) Secession is not devolution

1.2 Federative secession and conceptual autonomy

1.2.1 Why the state-centric view of secession fails to account for the specific nature of federative secession

1.2.2 Dogma on federative secession

a) Federative secession and intra-federative secession

b) Secession of a member state and exclusion of a member state

c) Unilateral or non-unilateral secession?

d) The effects of secession: secession and dissolution

2. Deciding the licitness of federative secession: neither authorized nor prohibited (like secession from a unitary state)

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2.1 Federative secession cannot be prohibited a priori

2.2 The impossible licitness of unilateral federative secession

3. The impossibility of imposing a legal sanction on federative secession

3.1 The distinction between federal intervention and federal execution

3.2 The Civil War, or the division of the union institutionalized by war

3 Are federalism and secession really incompatible?

JORGE CAGIAO Y CONDE

Introduction

1. General approach

2. Secession as seen by the theoreticians of federalism

3. Secession in positive law

4. Secession and “legal logic”

Conclusion

4 From referendum to secession – Québec’s self-determination process and its lessons

DAVE GUÉNETTE AND ALAIN-G. GAGNON

Introduction

1 The constitutional capacity of Québec’s institutions to hold a referendum – A stake little debated or opposed

1.1 The historical dimensions leading to referendums on the sovereignty of Québec

1.1.1 Referendum practices in Québec and Canada prior to the debates on secession

1.1.2 The 1980 and 1995 referendums on Québec sovereignty

1.2 The legal aspects allowing self-determination referendums in Canada

1.2.1 The absence of constitutional restrictions on holding referendums

1.2.2 Constitutional practices with respect to referendums

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2 Québec’s constitutional ability to declare its independence – An issue far less consensual

2.1 The activism of federal institutions

2.1.1 The Reference re Secession of Québec and the conciliation of strongly diverging interests by the Supreme Court of Canada

2.1.2 The Clarity Act and the federal parliament’s declaration that it was both party and judge in the constitutional dispute

2.2 The contemporary evolution of the debate and some unanswered questions

2.2.1 The threshold of the popular majority required for Québec to declare independence

2.2.2 The ambiguity surrounding the duty to negotiate and the process of constitutional amendment

Conclusion

5 Compromise or dislocation: federal alternatives to secessionist and centralizing temptations

LUCÍA PAYERO-LÓPEZ

Introduction

1. Federalism in Spain

1.1 The federal projects of political parties in the central state

1.2 The federal projects of political parties at the regional level

2. Federalism and the right to self-determination

Conclusion

Notes about the Contributors