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.
2 Secession from a federation: a plea for an autonomous concept of federative secession: OLIVIER BEAUD
It may appear a little impertinent for a legal expert from France – which offers the perfect example of a centralist state untroubled by the idea of federalism – to come to Montréal to talk about “seceding from a federation”. The theme is politically explosive here and also largely “preempted” by the well-known Advisory Opinion provided by the Supreme Court of Canada in 1998 on the question of Québec’s secession.2 My goal here is to “delocalize” the topic – away from Québec and Ottawa – by annulling the Québec-Canada tropism.
My first reason for delocalizing the question is that the courts cannot have the last word on conceptual matters – doctrine still has a key role to play in addressing the question of secession within a federation. It is not clear, for example, that the Supreme Court of Canada has exhausted all possible avenues in its advisory opinion. Despite its shrewd approach, ←63 | 64→I feel that the Advisory Opinion has the unfortunate effect of minimizing the federal issues that underlie the question of secession.
I also prefer to delocalize the question because the issue of secession is not unique to Canada. It has also been raised in the United States in recent years, both in Texas under Governor Perry, and in Vermont, where some people have called for the establishment of a second republic to avoid the state being melted down for inclusion in what could be called an Empire.3 When Donald Trump was elected to the presidency of the United States, the threat of secession was brandished in California, and in Australia the state of Western Australia was recently called the “still reluctant State”.4 In Europe, the question of secession has emerged recently in quasi-federal spaces. Brexit has revealed to the citizens of Europe the existence of Article 50 of the Treaty of Lisbon, updating the Treaty on European Union (TEU), under which the United Kingdom – a member state of the European Union – was able to exercise its right to withdraw from the Union.5 Although the word “secession” is not used, the right of withdrawal can be seen as its equivalent under the law governing international organizations.6 It is also hard to view the recent events in Catalonia without thinking of independence, the concept of secession in action, even though Spain is not a federation stricto sensu.
My last reason for delocalizing the subject is to have an opportunity to address the question of secession from the standpoint of a general ←64 | 65→theory of federation, without focusing on a single country. My starting-point for this is the judgement made by Carl Schmitt in Chapter 29 of his Constitutional Theory:
In the question of secession, this fundamental problem of the federation comes clearly into view. If the essence of the federation is that it should be ongoing, the entry into the federation must mean the continual renunciation of the right to secession. If, however, the federation should simultaneously be a contract and the states of the federation should not lose their independent political existence, then the federation members must remain in the position of deciding for themselves the question of the current impossibility, applicability, and annullability of this ‘contract’.7
Although there are many different antinomies in the political body constituted by a federation, the question of secession could be called the “antinomy of all antinomies”. It is the kind of question that frightens legal experts – a typical hard case – because it leads to the abyss. Is this why it has received so little attention? Possibly, but it is also important to note that cases of secession from a federation are rare and that empirical data is comparatively scarce. Given that federalism is an empirical way to prevent political unions from imploding by giving enough autonomy to certain sub-units that, in a unitary framework, could aspire to separation, the lack of data is probably normal. If we think in terms of political identity, are there not good reasons to posit that federalism provides a pragmatic alternative solution to secession, oppression or permanent dissatisfaction8 for minority groups?
The first factual observation that I would like to make is that there are very few studies of secession from a federation. Books and articles about secession from a state are legion, in both international public law and political philosophy, obviously because of the multiplication of cases in Europe, from the dissolution of the USSR and the former Yugoslavia to the secession of Kosovo from Serbia, all of which have attracted attention ←65 | 66→over the last twenty years.9 At the same time, however, a feature of this prolific literature is that it does not isolate the problem of secession within a federation. For example, in a recent Italian book on “secession and constitution, from theory to practice” (2007), there is no specific discussion about the relationship between secession and federation, even though three of the practical cases presented – the United States, the Canadian experience and the dissolution of the USSR – are tied to federalism.10 Astonishingly, in an article entitled “A ‘Federal’ Right of Self-Determination?”,11 the author, a well-known German academic, fails to deal at all with the subject in the title, namely the relationship between secession and federalism. The same reticence about considering secession in a federal framework is found in the field of political philosophy. Cass Sunstein, in a study that is frequently cited, examines the relationship between secession and constitutionalism solely from the point of view of the nation, vigorously rejecting constitutional recognition for the right of secession.12 Last, in a general overview, philosopher Allen Buchanan, author of a reference work on secession, refers to the case of Switzerland, Belgium and Canada, describing them as “multinational democratic states”13 but never as federal systems, instead putting the emphasis on the two adjectives that tie them to the ideas of democracy and nation.14
It would be easy to think that the literature on federalism deals more openly with the question of secession, but nothing could be further from the truth – the theme of secession is rarely addressed. One example is a book that constituted a reference when it was published: the volume ←66 | 67→edited by Arthur MacMahon, Federalism: Mature and Emergent.15 Not only does it contain no articles on secession, but the index offers only two references to the question. Almost at the same time – in the mid 1950s – two US professors, Bowie and Friedrich, decided to explain federalism to the Europeans who had just created the European Coal and Steel Community. They published a weighty tome, Studies in Federalism, translated into French in two volumes (Études sur le fédéralisme), that did in fact include a chapter on the defence of the constitutional order, but nothing on secession, a question that was neglected,16 or perhaps repressed or considered too taboo. It was mentioned briefly in the chapter on the “Admission of New States, Territorial Adjustments and Secession” which contained, first, a slim paragraph17 dealing essentially with the US Civil War and, second, at the end of the chapter, a single page in which the authors affirm – in a well-known formulation – that the right of secession for member states is incompatible with a federal government.18 In this way, the question of secession from a federation is not studied as part of the classical doctrine of federalism. The same quasi-silence is also a feature of more recent literature. In a work of ambitious scope, Federal Vision, resulting from a seminar organized in Oxford by Robert Howse and Kaipsos Nicolaidis, secession is never mentioned, even though the goal of the book is to discuss the legitimacy of this type of governance.19 The same can be said of the seminar held in Montréal on the theme Le fédéralisme dans tous ses états,20 which also managed to avoid the question of secession.
The silence is even more eloquent in the United States, where books on constitutional law seldom deal with secession. In the enormous commentary on the constitution, Annotated Constitution, edited by ←67 | 68→Edward Corwin, the word secession is not even in the index, whether as a main entry or a sub-entry under state. In the US, the question of secession has a poor reputation, because it brings back memories not only of the Civil War of 1861 to 1865, but above all of the doctrines of John Caldwell Calhoun, the main political theorist of the southern states, who justified secession while fiercely defending slavery. The dark shadow of slavery and of the Civil War of 1861–1865 accompanies, and suppresses, the question of secession in the United States. A renewal of interest is timidly emerging, as reflected in the publication of a major book edited by Sanford Levinson on nullification and secession, focused on the American situation.21
The paucity of the “federalist” literature on secession stills provides two important pieces of information. First, it remains dominated by the misconception that secession is prohibited in a federal state but authorized in a confederation of states. This is made clear in Jellinek’s analysis of the state, in which he remarks, with respect to secession, that “political suicide is not a legal category”.22 The conceptual opposition of the two types of federation (federal state and confederation) overdetermines the question of the licitness of secession. This is not an opinion that we need to spend much time on, for several reasons. First, because a number of authors consider, not without reason, that secession is just as illicit in a confederation as in a federal state, at least if a confederation continues to be distinguished from a simple alliance.23 Second, because a distinction between a federal state and a confederation has no bearing, in my view, on the legal understanding of federalism, meaning that I reject the further distinction between a constitution and a treaty (or confederal pact) as the legal foundation for each federative genre.24 My approach to the theory of federation is based, more generally, on the thesis that a ←68 | 69→federative pact constitutes the legal foundation, whatever legal form the federal union then takes.
The second lesson we can draw from the literature on federalism is what could be called a negative lesson. Few legal experts have taken the time to study actual cases of secession in the history of federal countries. Setting aside the second half of the 20th century and the well-documented cases of former Yugoslavia and the USSR, and a historical attempt in Canada (Québec), it becomes clear that few legal studies, especially constitutional studies, have focused on the US War of Independence or the Sonderbund conflict of 1847 in Switzerland or the secession of Western Australia in 1932. Would it not be useful to examine the question of secession from a federation using these actual cases? This paper results from a partly incomplete investigation, since I was unable to complete my reading about real-life cases of federative secession, meaning that the fundamental question of how secession should be interpreted (is it or is it not admissible in a federation?) will be examined in a slightly theoretical way – but not only from a theoretical standpoint (see section 3.2) – without the substrate for the praxis which, in retrospect, I now consider essential.
However, the incomplete nature of my research does not prevent me from putting forward at least one idea, a plea for an autonomous concept of federative secession. In my view, the dominant literature is wrong to define secession on the basis of self-determination, and therefore to view it simply by reference to the state. Compared to “normal” secession, meaning secession from a unitary state as envisaged by the doctrine of international law, federative theory attempts to identify, in other words specify, what is meant by federative secession. My initial discussion of the legal dogma attempts to compare federative secession with secession from a unitary state (1). After this, I examine the important, and difficult, question of whether secession is admissible, or licit, in a federation, a question that is viewed from several standpoints that highlight not only its paradoxical nature (2), but also the impracticality of sanctioning attempts to achieve secession (3).←69 | 70→
My approach here stems from my survey of the literature, which showed that federative secession has not been examined as a stand-alone concept. Why? I believe the answer lies in the way in which secession is viewed in the doctrine of international public law and in political philosophy, in other words essentially based on the notion of self-determination which is itself overdetermined by the notions of state and nation. My first task is to perform a critical analysis of this dominant conception of secession, and then to propose a description of secession within a federation that identifies its specific nature.
The dominant conception is imposed by the literature in the fields of international law and political philosophy, which considers secession to be what happens when a group claiming the right to self-determination questions its membership in the larger state.
1.1.1 Secession seen as the aspiration of an infra-state (or infra-nation) group to constitute its own state or nation
The doctrine of international law views the secession of a federated state as the normal case of a group leaving a state to create a new entity. Treatises on international public law examine secession as part of their study of the way in which new states form, defining it as “the amputation of part of a state’s territory, with the amputated part constituting the spatial foundation for the new state”.25 The Supreme Court of Canada defined it as follows in its 1998 Advisory Opinion: “Secession is the effort of a group or section of a state to withdraw itself from the political and constitutional authority of that state, with a view to achieving statehood for a new territorial unit on the international plane.” (§ 83). An even ←70 | 71→more restrictive definition is given by Marcelo Kohen, who sees secession as “the creation of a new independent entity through the separation of part of the territory and population of an existing State, without the latter’s consent”.26 It is clear that international law specialists see secession in terms of the formation of a new state, or in other words consider only the result of a successful secession. Alongside substitution, it is one of the two modes of “the emergence of a state collectivity”;27 unlike substitution, secession has the particular feature of allowing “the survival of the existing state or states”.28 From a practical point of view, this really only occurs in the case of decolonization, following which “secession allows the parent state to continue in law”.29 Decolonization makes it possible to justify secession, legally speaking, by admitting the “right of peoples to self-determination”.30 The question that remains to be discussed is whether it is possible to admit “the right to self-determination in situations other than decolonization”,31 to borrow the title of a thesis. If this right is admitted, it would call into question the principle of territorial integrity that has been raised in opposition to other dependent peoples whose right to secede, unlike that of colonized peoples, has not been recognized.32
Seen in this way, secession is state-centric: it describes the departure or withdrawal of a group from State A to become State B. This is logical, since international law remains broadly inter-state. Under this doctrine, a federation is first and foremost a state, and has no need to question its specificity or that of a secession within the state, since its “internal” constitutional structure remains the same from the point of view of international law.←71 | 72→
Political philosophers, in turn, have studied secession above all from the point of view of legitimacy. Unlike legal experts, most of whom33 deny that a right of secession can validly exist except in the case of decolonization, philosophers tend to defend its legitimacy. We will refer here to the work of the most influential of these philosophers, Allen Buchanan. In his book on secession as a political divorce, he examines the “morality” of secession.34 On what basis can a fraction of a state, or of its population, claim the right to leave that state to found another? This type of normative question requires an examination of secession from the angle of the right to self-determination. This can be seen clearly in the definition that Buchanan gives of secession, as “a kind of collective action, whereby a group (whether officially recognized as a legitimate political subunit or not) attempts to become independent from the state that presently claims jurisdiction over it and, in doing so, seeks to remove part of the territory from the existing state”.35 Secession therefore expresses the wish of a “small” group to separate from the larger political grouping to which it belongs. Its claim is based not on individual rights but on a collective right, in other words the right of a group or grouping, generally territorial.36 In fact, secession is perceived as a legitimate claim by a nation to be recognized as a nation-state. This focus on the group raises the question of whether an ethnic group or a people can claim a right to secession. The justification for this is not just liberal, as suggested by those who see it as a remedy, the ultimate “corrective action” when faced with oppression from a state that does not tolerate minority nations, but is often, in fact with increasing frequency, supported by a democratic justification. The only modern way to legitimize a claim by part of a people to express its wish to achieve emancipation is to allow its voice to be heard. In this case, self-determination is acquired on the basis of the decision by this emerging people that formally and objectively expresses its desire to constitute a new political entity: a nation. The ←72 | 73→argument based on democratic principles has been analysed at length, and critiqued, by the Supreme Court of Canada in its Advisory Opinion.
This initial “overview” of the existing literature shows that legal experts and philosophers alike view secession as the consequence of a people’s right to self-determination, by virtue of which a socio-political group claiming to be a people or nation can successfully emerge on the international stage as a state.
The literature of international law is also interesting, since it proposes a sort of legal dogma for secession. The authors studied suggest that the act of secession resembles a unilateral right of withdrawal raised by a group with the state to which it belongs,37 but that its implementation does not result in the disappearance of the “parent” state. From this first statement, however vague, arise two consequences: secession is not dissolution, and it is not devolution.
To understand this point, we need to examine the respective effects of secession and dissolution. In the first case, the creation of a new state by the seceding group does not affect the sovereignty of the state from which it secedes. Pakistan, for instance, did not disappear after its eastern portion, Bangladesh, seceded. Secession is therefore not the same as the dissolution of the state, which occurs when “the pre-existing state breaks into several new states”.38 From this point of view, the collapse of the former USSR is instructive, even if there are doubts about the actual federative nature of this very unusual political entity, dominated by Russia but above all subject to the iron hand of the Communist party. First, the three Baltic republics declared their independence in 1990 and August 1991, based not on their right to secession, but on the illegal nature of their annexation by the USSR in 1940. Next, following the failed coup in August 1991, the Soviet Union recognized their ←73 | 74→independence and the twelve states, including the Russian Republic, agreed to end the federation. Legally, the dissolution was defined in the Minsk Agreement, which created the Commonwealth of Independent States (Russia, Belarus and Ukraine), followed by the Alma-Ata Protocol, signed by eleven of the twelve republics (excepting Georgia). This was the basis for the claim that “the republics did not secede as such from the union, they dissolved it […] No rule of international law prohibits the mutual dissolution of a state by its component units”.39
The precedent of Yugoslavia does nothing to contradict the Soviet case. It served as the first “test” for the right of secession in a situation other than decolonization, and confirmed the unwillingness of international public law to recognize the right of secession of member states. The federative union of six states broke down in 1991 when four states (Slovenia, Croatia, Bosnia-Herzegovina and Macedonia) decided to leave the federation and proclaim their independence. In the case of Yugoslavia, the survival of the federal entity was at the heart of the opposing claims made by the former components of the federation. Serbia considered that the federation continued to exist (represented by itself), while the “secessionist” states (which in fact refused to use the term “secession”) claimed that it had disintegrated. In its response to Lord Carrington, the Arbitration Commission – known as the Badinter Commission – stated “the Socialist Federative Republic of Yugoslavia is in the process of dissolution”40 with the result that, for the succession of the state, Serbia could not legally consider itself the successor to Yugoslavia. In addition, the Commission considered that the defection of the four member states no longer authorized the Federal Republic of Yugoslavia to claim that its authorities were able to represent its member states, as required by the federal dogma.41 A majority of international law commentators describe this fragmentation of Yugoslavia as a “process of dissolution”,42 resulting ←74 | 75→from the fact that a majority of member states (4 out of 6) decided to leave the federation. However, a minority consider that the eighth notice of the Arbitration Commission hints that it implicitly recognized the republics’ right of secession.43
It is only possible to understand the interest of international law doctrine in distinguishing between secession and dissolution if we also take into account the fact that international law aims above all to “[determine] certain legal consequences pertaining to the situation after secession”.44 Describing a separation process as a “dissolution” has the key advantage of making the principle of territorial integrity inapplicable: each new state can enjoy its own territory, with no problems for the former state which has disappeared. However, this tells us nothing about the right of the members of a federation to secede from it.
One of the main questions in legal dogma is to know if secession is unilateral or not. Obviously, a lot depends on the definition. Here, we will rely on the statement by Marcelo Kohen that “the lack of consent of the predecessor State is the key element that characterises a strict notion of secession”.45 The advantage of this definition is, in my view, that it can be opposed to another concept that is common today, devolution, which can be interpreted as a territorial arrangement under which State A agrees to divest itself of control over part of its territory.46 This is why the question of consent is constantly discussed in international law. By positing a broader conception of secession, it is possible to admit the idea of a “negotiated” secession. In fact, the Supreme Court of Canada, in its Advisory Opinion on Québec secession, appears to be leaning in this direction.
The tension between the two approaches can be examined using the accurate observation that secession is a “process” that, within the ←75 | 76→overall movement, contains two decisive phases: the decision to secede, and the implementation of the decision. In the first case, I believe we have no choice but to admit that it can only be unilateral. Secession is a separation decided and imposed by the party that wishes to leave, but the fact remains that once the decision has been made, the focus shifts to how it can be implemented. The negotiations concern the implementation of the decision, rather than the secession decision itself. This, at any rate, is how I interpret Brexit, the conceptual equivalent of secession within the European Union (the right of a state to withdraw from an international organization).
The discussion of the matter of secession as part of international law doctrine is interesting and sometimes highly theoretical.47 It contains subtle conceptual distinctions, but whether or not these legal speculations apply to a secession from a federation remains to be determined.
International law specialists and political philosophers alike reason as if a federation was a state. Because of this, I believe that they fail to account for the specific nature of federative secession, which results from the fact that since a federation is not a state it cannot be understood using the same concepts.
1.2.1 Why the state-centric view of secession fails to account for the specific nature of federative secession
According to the thesis I am defending here, federative succession is an autonomous concept, because of the nature of a federation and its legal foundation, the federative pact. Compared to a state, the nature of a federation is to be both a union of states and a political entity.48 Because of its specific nature, a federation has a decisive impact on the nature of each member, or federated, state. A federated state represents not just a part or fraction of the total territory and population of the larger state but, unlike an intra-state group seeking secession, is in itself a member ←76 | 77→state, with its own territory and population. This stems from the principle of federative duality, which allows two political units, two political bodies, to co-exist within the same structure. There are two territories, the federated territory and federal territory, as well as two nationalities and two citizenships within the federal construct.49
In terms of territory, it is enough to note that there are borders between the member states and that the first measure taken under the constitution of the Helvetic Republic, inspired by the French Directory, was to define the Swiss territory as “one and indivisible”. In Switzerland, “cessions between cantons” are possible.50 The population is also at the heart of discussions about secessionist self-determination. In the view of the dominant international law doctrine, which thinks in terms of states, there can only be one people within a state, which runs completely counter to the conception of the Supreme Court of Canada, which allows for the possibility of a different “people” – in this case, the Québec people – within the Canadian people.51 This creates a major difference for secession within a federation: the population of the federated state concerned is already a people or nation, and is not seeking to become one through secession. The characteristic of a federation is to have a people of peoples, or composite people.52
In addition, when a member state expresses the wish to leave the federation to which it belongs, it can obviously invoke the right to self-determination, since it was under its free determination that it entered the federation. As noted by Anton Greber, it has “a ‘pre-positive’ right (vorpositiv) to self-determination”.53 In other words, in a federation, the ←77 | 78→state that wants to secede already has a legal status and certain rights. The only difference with a “subnational” entity in a state, although this is a key difference, is that it wants to reuse its self-determination to leave the federation it has joined. The situation within a federation is highly specific, because of its dual nature (federation + member states), and also derives from the nature of the legal foundation for the federation, the federative pact. Member states are not subject to a constitution, as are the communities or territorial units of a unitary state. They are the true authors of the federative constitution, because they not only helped draft it, but also, above all, gave it effect by ratifying it. In other words, after entering the federation by signing a pact with the other member states, a federated state can claim an entitlement to free itself of the federative links by breaking the pact it signed with the other federated states that gave birth to the third party known as the federation, if it considers, at its own discretion, that the functioning or evolution of the federation does not match the goals of the federative pact.
For such a member state, secession does not have the same meaning as for an infranational group aiming for secession from a state. It is not trying to become a sovereign state, but to become once again a sovereign state, in other words what it was before it began its federal adventure, or even to continue being the sovereign state it claims to be within the federation54 after signing the federative pact or asking to be admitted to an already-created federation. In other words, while secession in international public law leads to a presumption of illicitness because it undermines the principles of territorial integrity (the corollary to state sovereignty), the presumption is reversed in a case of federative secession. The member state already has a defined population and territory, and belongs to a federation whose defining feature is that it is based on a political duality; the federation and its member states coexist in the same framework without it being possible to claim a hierarchy between the two political entities, or in other words a right held by the federation to command the member states. So, unlike a secession “from” a state, a federative secession involves a political body, the federated state, recovering the integral political existence it previously enjoyed by separating from the unit it helped to form or joined.←78 | 79→
In short, it appears that the originality of the federal situation – its structural duality (federation and members states) – inevitably colours the question of secession. The conceptual autonomy of the federation necessarily leads to the conceptual autonomy of any secession from the federation. This type of secession must be given a different name, and this is why I refer here to a federative secession as opposed to secession from a state. The difference between the two can also be seen as a difference of perspective: the dominant international law doctrine views secession in terms of its outcome, the creation of a new state (in spatial terms, “downstream”), while the theory of federation sees it as the departure of a state which changes the composition of the federal institution (in spatial terms, “upstream”). Without ignoring the consequences of secession, from the point of view of the doctrine they are secondary matters.
Federative secession can only be fully appreciated if it can be distinguished from other similar concepts. The first step is to clearly identify from what a political entity is separating when it secedes from a federation.
In the sense in which it is used here, federative secession is the separation of a member state from the federation to which it belongs. However, in a federation, another hypothesis can be considered: when, within a federated state, a socio-political group wants to become a new federated state. In this case, the secession divides the federate state. This is not just a hypothetical possibility, since it actually occurred in the United States during the Civil War when a non-secessionist part of Virginia wanted to join the Union in 1861; it separated from Virginia to create West Virginia after being admitted to the Union by Congress in 1862.55
More recently, a highly documented case in 1978 involves the birth of Jura as the twenty-third canton of the Helvetic Confederation (Switzerland). It resulted from the scission of part of the canton of Berne, called the “Berne Jura”. The separation relied on a mixed process, based ←79 | 80→on both federated and federal law. Legally speaking, the creation of the new canton appears to derogate from the principle of the intangibility of the cantons. The competent authorities took endless precautions to ensure that the scission did not follow the course of a unilateral secession, since it had been “authorized” by the Confederation and its authorities.56 The procedure took place at two levels: the cantonal level, with a referendum in the canton of Berne (in 1970) to accept the principle of referendums for the two parts concerned (the North and the South of the Swiss Jura), and a series of referendums, the first of which that was favourable to self-determination taking place on June 23, 1974 (the so-called act of free disposition in the preamble to the Jura constitution) that made it possible to determine the districts willing to found a new canton, and those that wished to remain within the canton of Berne. Last, a constituent assembly for Jura was formed and, in 1977, adopted a constitution that was approved by the populations concerned. At the federal level, the procedure involved the issue of a federal guarantee for the cantonal constitution of Jura and a decision by the federal assembly (March 9, 1978) proposing a revision of the federal constitution that was approved by a federal referendum on September 24, 1978.57 As a result, the Swiss constitution was amended in two places. In article 1, Jura was added to the list of the 22 previous cantons, and in article 80, the number of members of the state council was increased from 44 to 46 because each canton has two delegates.58 Following this, “the entry into ‘sovereignty’ of the republic and canton of Jura was set for January 1, 1979”.59 The quote marks are necessary for “sovereignty” since, despite the wording of the Swiss constitution (former article 3, Const. 1874), “the Swiss cantons are not sovereign states”.60 The new canton did not leave the Swiss federation, but only the canton of Berne.←80 | 81→
To set it apart from federative secession, I have applied the name of intra-federative secession to this splitting of a member state into two parts following the departure of part of a federated entity to create a new federated unit within the same federation. This is not a federative secession in the sense that I use it here, because the entities that secede intend only to change their status within the federation,61 without leaving it to become a separate state. In other words, the division occurs within a federated state, and not within the federation. Intra-federative secession concerns the member state and not the federation; it results in an increase in the number of the federation’s member states, while federative secession has the opposite effect by causing a reduction.
One of the particular features of federative secession is the effect it produces. Secession from a unitary state mainly affects part of its territory and population (as I have said, constituting an amputation). Federative secession, on the other hand, affects the federation more, because it modifies its composition and reduces the number of its members by the number of secessionist portions. This decrease in the number of federated entities resembles the exclusion of a member state, which also results in a loss to the federation’s substance.
The similarity between the two actions concerns the “disaffiliation” of the member state from its federation and the fact that it is caused by what could be called a serious loss of confidence. In the case of exclusion, a majority of member states agree to separate from a member that they consider undesirable for a serious reason, while in the case of secession, one or more members of the federation no longer have confidence in the federal authorities’ ability to represent them and want to return to their former status of monad-state. The difference between secession and exclusion is, however, clear if the criterion of initiative is taken into account. In the first case, the member state makes a decision alone to leave the federation while, in the second case, the decision is made by the federation which decides, on a majority basis, to exclude one of its ←81 | 82→members. In addition, the justification is not the same: secession is based on the principle of self-determination, while exclusion is a manifestation of the disciplinary power a federation holds over its members, a power that exists in any institution that holds disciplinary rights alongside statutory rights.
However, it is striking to see the general reticence to consider secession and exclusion as licit actions. We will come back to the case of secession, but here I will briefly address the reasons for which a federation cannot exclude, or expel, one of its members at its own discretion. It is even considered in Switzerland that it is not “within the power of the constituent [power of constitutional revision] to expel a canton”,62 apparently because the Swiss federal constitution guarantees the existence of the cantons (and their territories). This affects even the power of constitutional revision, and highlights the goal of stabilizing the composition of the federal family. This element of federal public order is corroborated by another rule that prevents the cantons from making agreements between themselves to unite or merge, which would upset the balance between the cantons defined by the federative pact.63 It can therefore be considered that the expulsion of a member state from the federation is illicit, since it would ignore the “teleology of the federative pact”.64 On the other hand, the voluntary departure of a member state from a federation may be based on far stronger reasons, as we saw earlier.
We saw above that secession from a unitary state may be analysed in a strict sense as a unilateral action resulting from a decision by a group to leave the state to which it belongs. In my view, there is no reason to consider things differently in the case of a federation. We can apply the idea examined above, according to which secession is a “process” (M. Kohen) that has a certain duration and involves a series of actions. ←82 | 83→Concerning the actual secession decision, it is clearly unilateral in the sense that it does not require the consent or agreement of any other party.
If one follows, and generalizes, what was decided by the Supreme Court of Canada in its 1998 Advisory Opinion, this unilaterality is not constitutionally licit. The Court sees a unilateral action of secession as “the right to effectuate secession without prior negotiations with the other provinces and the federal government” (§ 86, p. 264) and considers that the underlying constitutional principles of the Constitution Act, 1982 oppose this legal claim. For now, its conclusion as to licitness is not important, but only the fact that the Court has clearly identified the determining criterion for unilaterality: neither the federation nor the other member states need to give their consent to the decision of the secessionist entity. Just as a state facing a declaration of secession from a state-like group does not need to give consent, so a federation does not need to give consent in a case of federative secession.
On this specific point, the difference with intra-federative secession is striking, since in the latter case the federation is entitled to accept, or not accept, the secession occurring within a member state, exactly as it would do for the admission of a new state. There is therefore a process of application and authorization that is typical of intra-federative secession. This does not occur in a federative secession. The member state seeking to leave the federation does not ask for the federation’s authorization, but places it before a fait accompli, a little like a divorce demanded by one partner and refused by the other. As we will see, and this is the major hurdle facing federative secession, there is no third party to settle the dispute, unlike divorce in the field of civil law (the judge) and also, above all, unlike intra-federative secession. In the latter case, the authority of the federation is interposed between the member state and the intrafederated entity to decide whether or not to allow an internal secession within the federation.
However, since secession is a process, the decision to leave the federation – federative secession in the strict sense – has no effect in and of itself. The decision has to be implemented, in other words be capable of execution. Other decisions are required to give it effect. Three hypotheses arise in the second period of the process: amiable secession, refused secession, and conflictual secession.
In the case of amiable secession, negotiations take place after the actual secession decision, meaning that secession no longer appears to ←83 | 84→be unilateral in its effect, since the players must agree on the terms of separation. This, I believe, is one possible way to interpret the decision by the Supreme Court of Canada in the Reference Re Secession of Québec. It proposes a model for a peaceful departure.
A second case is more specific, and concerns the federations that were at the same time British dominions. In both Canada and Australia, a member state decided unilaterally to secede, but saw its decision rejected by the British crown, in other words by the Empire. We learn incidentally in the 1998 Advisory Opinion that just after the British North America Act was passed, Nova Scotia decided to secede and its Premier at the time, Joseph Howe, travelled to London to obtain endorsement for the decision by his province to leave the recently-formed Canadian federation. However, he was rebuffed by Her Majesty’s government.65 The same thing occurred in Australia with the secession of Western Australia in 1932. In December 1932, the parliament of the federated state decided to order a referendum on the question of whether Western Australia should stay in or leave the Australian federation. The referendum was held on April 8, 1933 and a majority voted for secession (138,000 for and 70,000 against).66 The result of the vote was surprising, given that on the same day the electorate, whether facetiously or in a state of contradiction, elected an opponent of secession to lead the state government. It is as if on the day of the Brexit vote, the British electors had elected to the House of Commons the party led by Cameron, an adversary of Brexit. The new head of government, however, decided that he could not oppose the popular will or ignore the referendum result. The political authorities and the government of Western Australia had three choices: to confirm the decision by opting for unilateral secession and independence; to follow the legal process and obtain a revision of the Australian constitution (section 128) to change the composition of the member states; or to petition the British parliament to obtain an amendment to the Australian federal constitution. Western Australia chose the third solution, and submitted a petition, along with a delegation to London to plead the cause of ←84 | 85→succession. However, the British authorities refused to allow grant the petition of the secessionist state of Western Australia, on the grounds that constitutional conventions did not allow an amendment to the legislation of a dominion with respect to its internal affairs without the consent of the government of the Dominion of Australia. In other words, secession, in the form of an amendment to the Australian constitution via an act of the parliament in Westminster, required prior approval from the Australian federal government. Both of these examples prove that unilateral secession can be rejected by an interested third party. From this point of view, it is clear that the sovereignty acquired by Canada in its constitution of 1982 changes the situation, since there is no longer the possibility of an appeal to London to arbitrate the case of Québec’s secession.
On the other hand, when unilateral secession is refused by the federation (and in particular by a majority of the other member states), it can lead to a conflictual secession. This is the case we will look at in the second part, which examines whether or not a right of secession exists.
As we saw above, the doctrine of international law distinguishes between secession and dissolution, because dissolution leads to the disappearance of the existing entity, while secession maintains the so-called parent state (the state which the secessionist entity leaves). The two emblematic historical cases are the disappearance of the USSR and Yugoslavia resulting from the departure of their member entities.
The same analysis appears to apply to the ideal-typical case of secession in the United States in 1861. Based on the ideal-typical interpretation of this event, secession without dissolution is possible. The northern states remain united and therefore the Union remains viable, despite the amputation of the southern states, which do not intend to dissolve the union based on the wording of their unilateral acts to break away from the Union. For example, South Carolina, the first state to secede in December 1860, states that it wishes to dissolve the union with “the other states of North America”.67 This is proof that the federation of the ←85 | 86→United States of America is broken into pieces; it is no longer united, but divided into the southern states and northern states.68 South Carolina wants to break its ties with the northern states, and claims the right to become a “free and independent State”. The effect of this secession is to make the former member states, up to then “sister states”, strangers to one other. From this point on, the northern states are “foreign” in the eyes of the South.
To summarize the previous discussions, federative secession can be provisionally defined as the action by which a member state decides unilaterally to leave the federation to which it belongs. The decision does not necessarily lead to the annihilation or dissolution of the federation, provided that secession does not prevent the federal union from continuing to exist despite losing one of its member states.
2. Deciding the licitness of federative secession: neither authorized nor prohibited (like secession from a unitary state)
Now that we have isolated the concept of federative secession, we can turn to the question of whether it is licit. In other words, does a member state have a right to leave the federation? This is the type of hard case that legal experts sometimes like to address, but it would be a mistake to believe that all legal experts, even the most theoretically inclined, would consider this a “hard” case. For example, Hans Kelsen sees no difficulty at all. In his view, secession is licit if it is provided for, and therefore authorized, in the federative pact (under specific conditions), and illicit in all other cases.69 This position is coherent in philosophical ←86 | 87→and legal terms since it is based on the idea that a right of secession can never be a natural right, resulting from the sovereignty of the state, but only a “positive” right, prescribed by law. Although coherent, the position is also unrealistic, given that an immense majority of federative texts do not deal with the hypothesis of secession.70 It is true that the authors of federative constitutions find it difficult to introduce such a clause explicitly since, as noted humorously by Joseph Weiler, there is a “reluctance to talk about divorce on the wedding day”.71 On the rare occasions on which the issue is addressed in a pact, it is generally to prohibit secession, for example in the Vienna Final Act of 1820, which founded the German Confederation.72 In addition, the only federal constitutions that provided for secession were those adopted in the Soviet Union,73 and nobody imagined that the clause would ever be effective given the massive contradiction between the principle of free secession and the real supporting pillar of the Marxist constitution: the dictatorship of the Communist Party.
However, if the question is not resolved in a legal text, legal experts can construe the rule that is supposed to apply to secession from ←87 | 88→this empty space, and also from other articles in the pact or another unwritten principle.74 This is clearly the reasoning behind the Supreme Court of Canada’s approach to the secession of Québec, since there was no text it could turn to. In a classical manner, it distinguished two points of view on the possible licitness of secession: that of the constitution (constitutional law) on the one hand, and that of international public law, on the other. Its examination was therefore based on the classical opposition between domestic public law and international public law. The “international law” part of its reasoning need not concern us here, even though it is both interesting and instructive, and in our view the most persuasive. Instead, we will look at the constitutional portion. To affirm the illicitness of Québec’s secession, understood as a unilateral secession, it based most of its argument on the following reasoning. First, it described secession as requiring an amendment to the constitution (§ 84),75 and then deduced, implicitly, that this would need the agreement of the other member states and of the federation, which it interpreted as an obligation to negotiate. Last, it drew the conclusion that “under the Constitution, secession requires that an amendment be negotiated” (§ 97, p. 270). In reality, Québec could only secede if the people of the whole of Canada consented, since the constitution is the “expression of the sovereignty of the people of Canada”.76
According to the Advisory Opinion, the main question is whether or not secession should be interpreted as an amendment to the Constitution. It is interesting to note that the Court does not pay much attention to the most serious objection to its thesis, namely that “secession could be a change of such a magnitude that it could not be considered to be merely an amendment to the Constitution” (§ 84). As we will see below, it is reasonable to ask whether changing the composition of the federation is not in fact more than a mere amendment to the constitution.
The thesis I propose to defend here is slightly different to the position taken by the Supreme Court of Canada, although I cannot claim that ←88 | 89→it is original. It involves the idea that secession is neither licit nor illicit, in other words neither prohibited nor permitted. More specifically, I apply the description of Anton Greber that it “cannot be either prohibited or understood as a unilateral right”.77 This double negation – neither authorized nor prohibited – of a federative secession contrasts with secession from a unitary state, which in international public law is considered to be non-authorized.78 In the doctrine of international public law, the question posed by secession is above all a question of fact because, if a new state is created, it is important to know how to consider the question in normative terms, integrating the idea of “juridical fact”.79
Before showing that the specific nature of federative secession turns above all on the fact that no legal sanction can be taken against the seceding state, we would like to return to the double negation, “neither prohibited nor permitted”, which is another way of describing the antinomy included in the concept of federative secession. In other words, I believe it is necessary to deal with the question of secession based on the federal principle, unlike the Supreme Court of Canada, which only used the principle of federalism to create an obstacle to the democratic principle of self-determination. This focus on the federal principle leads me to consider that the question of democracy (or of the democratic principle) is not relevant to a decision on a case of federative secession which, on the contrary, can only be resolved using the federal principle. On the other hand, because of the ambivalence of the federal principle, it can also be used to explain why the unilateral secession of a member state cannot be admitted a priori.
The literature on federative secession, in my view, too often reduces it to the sole example of the US Civil War of 1861 or, some years previously, the nullification crisis opposing Calhoun from the South and ←89 | 90→Webster from the North, or Andrew Jackson.80 Since the political issue was whether to maintain slavery (the position in the south) or abolish it (as proposed in the North), to justify secession was to justify slavery. Mutatis mutandis, in Switzerland, defending the right of secession of the seven conservative cantons during the Sonderbund War (1847) involved defending a certain form of conservative Catholicism. However, the question of secession from a federation must be separated from the circumstantial content of the surrounding political issues81 and analysed in itself, from the sole standpoint of federative logic.
From the point of view of federative theory, the thesis that secession has intrinsic legitimacy can be based on two extremely serious arguments.
The first is drawn from the principle of self-determination for member states, otherwise interpreted as a “right to self-preservation” that can be invoked as a last resort – a sort of ultima ratio82 – in a case of necessity, if required using the metaphor of the federative pact. Under this theory, secession is a right based on the idea that the member states of a federation have not renounced their sovereignty, which they can reclaim at any time depending on the circumstances. The theory, which encapsulates the opinion of Calhoun and his supporters, indicates that federated states do not renounce their sovereignty or consent to unlimited submission to the government created by the initial agreement. If, at any time, the federal government, in exercising its authority, exceeds the powers given to it, each state is entitled to determine itself the nature and scope of the measures needed to remedy the situation. The measures include, in addition to a revision or annulment of the constitution, “the ultimate remedy, secession, and following the logic of a close reading ←90 | 91→of the constitution, this measure was perfectly legitimate”.83 Based on this reasoning, the initial expression of sovereignty is the signing of a federative pact, but the pact is not a constitution in the sense of a constitutional law that binds the newly-federated states by imposing absolute obedience. The federative pact is based on the supposition that the federating states have a form of sovereignty that is latent and can re-emerge at any time if the states consider that the aims of the pact have been violated by the federation. This type of pact also includes the supposition that a federative constitution is not of the same nature as a unitary constitution and that the fact that it is initially entered into as an agreement – through an “accord” or “pact” between the federating units – has repercussions on the degree to which the member states are bound by the pact. This argument, the strongest advanced by the partisans of secession, highlights the symmetry that should exist between entering and leaving a federation. The principle of free aggregation and the free signing of a federative pact corresponds to the principle of free departure, or freedom to leave the federation for an overriding reason.
The second argument is drawn from the fact that this sovereign prerogative illustrates the founding equality that must exist between a federation and its member states, so that neither is subordinated to the other. This idea underlies much of the reasoning of John Calhoun when he describes the constitution of the United States as a compact, and it was also defended a century later by a legal scholar, Kenneth Wheare, who wrote a reference work on federalism, based on the principle of coordination between the legal orders, which I prefer to call federative parity. On the one hand, he denies that the moderate solution of annulment can be compatible with federalism, since it subordinates the federation to its federated units, but on the other he authorizes the radical solution of secession for the following reasons:
The right of secession […] claims that states may decide whether or not they will be members of the union. They can choose whether they will submit to the laws of the general government entirely and without exceptions, or whether they will reject the authority of the general government entirely. The right to secede does not make the general government the agent of the states as does the right to nullify; on the contrary it recognizes that the general government is to be either co-ordinate with a state government within the area of the state, or is to have no connection with it.
But while the existence of a right to secede unilaterally or a right to expel unilaterally may be quite consistent with federal government, it is not, I believe, consistent, as a rule, with good federal government. It is well not to exaggerate. There are cases where to grant the right to secede is to ensure that states will never exercise it. But as a rule it weakens government. It places a weapon of political coercion in the hands of governments which they may use in order to get their own way.84
To illustrate the fact that the right of secession, if officially recognized, weakens the federation and reveals a bad federation, Wheare takes the paradoxical example of the USSR which recognized Ukraine’s right of secession. He adds sarcastically that such a right was officially recognized where “the exercise of the right is least likely to be permitted”.85 The argument of this English legal specialist is based on two key points: secession is licit in a federation, but to give it prior recognition weakens the federation. The most interesting point in his argument is the justification for this prerogative: since the federal order is juxtaposed with but not superior to the federated orders, the federation has no general and absolute right to be obeyed by the federated states. Interpreted in this way, as opening up the possibility of ultimate disobedience by the member states, the right of secession illustrates the principle of federative parity. In other words, the secession of a federation member cannot be prohibited by law even though, in actual fact, as pointed out by Wheare, the political use of secession is bad.
Here, the distinction between law and fact does not cover the same ground as the Supreme Court of Canada, which considers secession as contrary to law but able to succeed in fact. This is how it described, in a critical manner, the way in which the doctrine considers the principle of effectivity (§ 106), lucidly recognizing that “this does not rule out the possibility of an unconstitutional declaration of secession leading to a de facto secession” (§ 106). Wheare takes the opposite stance: secession may be licit, but it may also be a poor decision and a poor way to govern the federation.
It will perhaps appear surprising that I have excluded the democratic principle from the list of arguments justifying secession, since it has clearly become the principle the most often advanced to support the ←92 | 93→right to secession, whether from a federation or a unitary state. Under the democratic principle, which is the principal legitimizing principle for power in modern federative republics, procedures organized within a federated state must allow the people to express its will, clearly and on an ongoing basis. If, at some point, the same people manifests, in an unequivocal and repeated way, its desire to leave the federal union, a serious conflict arises between the democratic principle, as it applies in the federated unit, and the principle of membership in the federation and its corollaries (the duty of federal fidelity, the duty to respect the federal constitution, etc.). The conflict becomes unsustainable over time, since membership in the federation is meaningless if it requires the federated people to abandon the democratic principle. This principle of democracy, used here with the meaning of sovereignty of the people, is not only a principle that supports legitimacy – under which the governing powers act “on behalf of the people” – but also a constitutional and effective principle that indicates that the people retains political control over its own fate.86 The people can either give the leaders it elects responsibility for making decisions in its place or, on rarer and more solemn occasions, take responsibility itself (in a referendum) for definitively settling politically important questions such as decisions about secession.
Readers will, of course, realize that I have assigned sovereignty here to the “federated people”, the people of the member state, since, as we have seen, it is not possible to imagine a federation without a plurality of peoples, without a plural understanding of the federative people.87 This view can be challenged – and has been on many occasions – by claiming that the majority/minority division that structures the democratic principle has moved into the federal space and no longer applies within the territorial framework of the federated sphere, but within the broader framework of the federation, meaning that one or more federated peoples must yield before the majority of votes expressed by the other federated peoples within federative structures. However, ←93 | 94→this shifting of the application of the majority/minority division ignores the federative logic88 that structures the political and legal space of the federation, which is built around the duality of powers (federal and federated). There is no longer any true democracy in a federated state if it is clear that the people have definitively and irreversibly given the federal authorities responsibility for deciding its political fate in its stead. If the federated people can no longer oppose the federal decision, it has lost its sovereignty. Or conversely, political life no longer exists in a federated unit if existential decisions are made only at the federal level89 and if, as a correlation, the people of the member state loses its ability to determine “its” policies. From this point of view, the so-called law of participation, under which member states, through their representation in the federal authorities, play a part in the exercise of the federal will, can never offer an adequate substitute for the dispossession of democratic power.90 Self-determination has greater weight when institutions at the federated level are democratized, and democratization gives the people of each federate unit a greater role to play in the institutional balance. For example, a referendum at the federated level that expresses a clear and affirmative desire for separation from the federal entity is a factor to be taken into account under constitutional law.
This was recognized, tellingly, by the Supreme Court of Canada, when it observed with respect to Québec that “the clear repudiation by the people of Quebec of the existing constitutional order would confer legitimacy on demands for secession, and place an obligation on the other provinces and the federal government to acknowledge and respect that expression of democratic will by entering into negotiations and conducting them in accordance with the underlying constitutional principles already discussed”.91 The Court’s argument is subtle, since it ←94 | 95→places on the other member states an obligation of understanding or benevolence towards the people of the recalcitrant member state trying to recover full sovereignty through secession, in the name of the democratic principle of popular sovereignty within the federated framework.92
However, despite the resonance and strength of the democratic principle, I do not believe that it can be used to explain the meaning and scope of secession within a federation. It is important to distinguish, here between, the state and its form of government. If a right of secession exists in a federation, it belongs to the federated state or member state, and not to its organs or the sovereign people. The state makes the decision on secession, and it is not necessary for it to be a democratic state. For example, in the 19th century, Prussia seceded from the German Confederation while it was still a monarchy. The key factor is the decision made by the member state, whoever makes it and legitimizes it. Obviously, in the modern world, the democratic principle legitimizes the decision to secede, but it is not an essential element in the definition of the concept, given that it is possible for a monarchy, as a member state in a federation, to have a right of secession.
To summarize this first argument, secession cannot be truly prohibited, since the prohibition would infringe the constitutional principles that are inherent to the existence of the federation and that ensure that the federated entities are not merely territorial communities subordinated to the central power, and therefore subject to absolute obedience. At the same time, it cannot be authorized, and this is the paradoxical nature of the situation.←95 | 96→
Jean-François Aubert writes that “with respect to secession, we scarcely need note that the cantons do not have the right to declare it unilaterally”.93 This statement is interesting, since it indicates that for a legal expert commenting on a federal system, the prohibition on unilateral secession is self-evident. I will attempt to examine this in more detail, using the discussions that Anton Greber has devoted to the “statutory” nature of the federative pact which affects the perception of secession. This examination of the licitness of federative secession should not be assessed solely on the basis of international or constitutional law,94 but above all on the nature of the federative pact, which can have as many hybrids as federation itself.95
It is too often overlooked that the specific legal nature of the federative pact is that it in an institutional, or “statutory”, pact. It results from an agreement, and presupposes that the parties were autonomous and that all members signed it freely. Once signed, however, the pact acquires traits that are no longer strictly contractual, to the extent that it creates an “institution”, an organization that gives its members specific status, rights and duties that clearly relativize their claims to autonomy. As a result, a pact of this kind is different from an ordinary contract, as has been recently demonstrated convincingly by Anton Greber. It is also a pact that cannot be dissolved as simply as an ordinary contract for a sustainable exchange of sustainable deliverables. In the case of a private contract, it is possible to renounce a deliverable, while if a statutory pact is dissolved, the “existential link” between the parties to the pact is broken.96 This existential dimension of the federative pact has legal ←96 | 97→scope, just as the details of a marriage contract affect the way in which divorce is envisaged (the conceptual equivalent of secession).
The first major consequence of the statutory nature of the federative pact concerns the effects of secession on the pact. Federative secession is often presented as having the effect of dissolving the federation, establishing equivalency between secession and the annihilation of the federation. This equivalency, however, is questionable. Legally speaking, secession has an apparently more limited effect, which is to change the composition of the federation. As we saw previously, the analogy with the exclusion of a member state or the admission of a new member state is clear. However, a change of this kind can be considered as major and highlights a significant element in the difference between a federative pact and an international treaty.97 Why, we ask, is this change, the voluntary departure of one of the contracting parties from the federal group, legally considered as an amendment that always requires a formal revision of the pact? The reason derives from the very specific nature of these institutional pacts where the “parties” do not really stand outside the pact they have signed, but are part of the “actual content of the pact” because of the close union between the authors of the contract and its object. In other words, the quality of the parties influences the signing of the contract, meaning that the signatories constitute a substantial element of the pact. In the event of a unilateral attempt at separation, the particularity of the statutory pact is that the law must take into consideration not only the demand of the dissatisfied party to “separate”, but also the interests of the other parties to the same pact that are directly affected by the demand. More precisely, the obligation to take the other parties to the contractual union into account arises from the obligation of loyalty towards the other contractants, which is known to have existed prior to the signing of the statutory pact.98 The result is that secession involves negotiation to avoid it causing a radical conflict between the “unionists” and the “separatists”. For this simple reason, the “statutory” nature of the pact has an impact not only on its signing, as we have seen, but also on the possibility of amending or terminating it. If secession involves, as a last resort, a change to the persons who are “party to the ←97 | 98→pact” (partners in the pact) and if they are also an important element in the pact, then it is logical to admit that the voluntary departure of one party constitutes an amendment to the federative pact, which is not necessarily an amendment to the constitution.
Federative secession therefore poses a specific problem, compared to secession from a unitary state, since the latter does not call into question the loyalty of the group’s members towards each other. The idea of federative loyalty is an integral part of the pact entered into by the member of a federation. They undertake not only to respect the contract, like any other, but also to take into consideration the interests of the other parties.
The legal consequence of this is that the amendment procedure applies. As Anton Greber writes, “the federative pact differs from the international treaty in that the withdrawal of a member (Ausscheiden) is equivalent to an amendment to the pact, and is therefore subject to the normal amendment procedure”.99 However, in a federal context, an amendment necessarily requires a decision by the other member states, whether unanimously or on a qualified majority vote. It is clear that the logical conclusion leads to a prohibition of unilateral secession, of the type claimed by Calhoun that is inherent to the concept of secession as outlined above.100 It is important to note in passing that it was to resolve the impassable gulf between the democratic principle and the federal principle – between secession and the maintenance of the federation – that the Supreme Court of Canada concluded on the need for a “negotiated secession”101 in a key paragraph of its decision (§ 104) that is worth citing at length:
Accordingly, the secession of Quebec from Canada cannot be accomplished by the National Assembly, the legislature or government of Quebec unilaterally, that is to say, without principled negotiations, and be considered a lawful act. Any attempt to effect the secession of a province from Canada must be undertaken pursuant to the Constitution of Canada, or else violate the Canadian legal order. However, the continued existence and operation ←98 | 99→of the Canadian constitutional order cannot remain unaffected by the unambiguous expression of a clear majority of Quebecers that they no longer wish to remain in Canada. The primary means by which that expression is given effect is the constitutional duty to negotiate in accordance with the constitutional principles that we have described herein. (§ 104).
As noted by Anton Greber, the Supreme Court did not rely on a theoretical analysis of the federal state.102 The “duty to negotiate” leads us to consider secession as a consent-based secession that, I believe, can take the shape of an informal amendment to the federative constitution. This is where I diverge from the analysis of Anton Greber, who requires a “revision of the Constitution”.103
The current trend is to encourage peaceful forms of divorce from a federation, in other words to aim as far as possible for a secession based on mutual consent to avoid the potential tragedy of a non-negotiated secession that can lead to armed conflict, made even more painful and violent because it is a fratricidal conflict between confederates. However, the term “negotiated” or “consent-based” secession raises a major conceptual problem, because it changes the legal nature of secession from unilateral to “bilateral” and “agreement-based”.
Redefined in this way, secession can be licit and recognized in both a federation and a unitary state, the only question being whether it is still secession. After examining the paradox that secession – as a unilateral action – can be neither prohibited nor permitted, we still have some surprises in store, since the ultimate problem raised by federative secession is the question of whether or not it can be sanctioned. What can the federation and its member states do to oppose a secession that they do not support?
The possibility of imposing a sanction following a decision by a member state to secede from a federation can only be considered in ←99 | 100→light of federative law, which contains two mechanisms authorizing the federation to interfere in the affairs of a member state and, ultimately, to impose constraints on a recalcitrant member state. Once we have examined this initial point, we will be in a position to answer the question of whether one or other of the mechanisms can be used to settle a fratricidal conflict between confederates triggered by a declaration of secession.
The concept of federal execution (Bundesexekution) is unique to Germanic doctrine (found in Germany, Austria and Switzerland).104 Contemporary doctrine presents it, above all, as an atypical measure that should be seen as an exception to the normal principle governing relations between the federation and its member states, which is the principle of “federal courtesy”. It is understood that if the federated units fail to defer to the “wishes” of the federal power, the federal level has a more effective way to impose its will and ensure compliance with the federal constitution.105 This explanation has the advantage of highlighting the derogatory nature of “federal execution”, which is a “means of control”106 exercised by the federation with respect to its member states, and was introduced to settle cases where the good intentions of both parties to cooperate amicably no longer sufficed. However, it is also clearly marked by a hierarchical vision of the relations between the federation and the member states, in which the latter must defer to the instructions or orders of the federal authorities.←100 | 101→
Here, I plan to present federal execution differently, based on the initial observation that, with its twin, “federal intervention”,107 it is one of the institutions designed to protect the federal constitution (Bundesverfas sungschutz).108 The similarity between the two notions can be seen at two levels. First, they both describe actions that are part of internal federative law, concern relations between the federation and its member states, and are exceptional in that they clearly undermine the principle of autonomy for the member states. Whether through federal intervention or federal execution, the federation interferes in the so-called internal affairs of the member states in an imperative way, by giving orders to the federated units.109 Because of these similarities, and especially in the 19th century, the two notions have often been confused. The similarities arise, first, from the fact that both are institutions of internal public law, under federative law. Their existence shows that “there is no federation that consists only of an external relation between its members and coming only under international law” and that, as a result, membership in a federation has immediate effects on internal public law (Staatsrecht).110
If this distinction was already part of German doctrine during the Weimar years, Ernst Rudolf Huber, to shed more light on the major events in German constitutional history, was forced to propose more fine-scaled definitions that we will use here. “Federal intervention is a rescue operation (Hilfesleistung) by the federation to help a member state threatened by actions undertaken by enemies of its constitution (verfassungsfeindlichen). On the other hand, federal execution is action taken (Einschreiten) by the federation against the member state when it violates its constitutional federal obligations.”111 He summarizes the difference as follows: “Federal intervention is the quintessence (Inbegriff ) of the executive measures by which a federative group (Gesamtverband) ←101 | 102→offers assistance that has been requested, or in certain circumstances, not requested, to the government of a member state that has respected its obligations of constitutional and federal loyalty, in order to maintain or re-establish public security and public order under threat from forces hostile to the constitution.”112 On the other hand, “federal execution is the quintessence (Inbegriff ) of the executive measures by which a federative group takes action against a member state to force it by constraint to accomplish the federal constitutional obligations that it has neglected”.113 The use of the term constraint highlights the resemblance between these two ways in which the federation can interfere in the affairs of its member states and the constraints that the state can exercise against citizens, since a failure to respect the law results in a forced execution and therefore, if required, in the use of force.
This conceptual comparison indicates the two key criteria for use in isolating each of the two concepts that provide measures to protect the federative pact. The first is the trigger event, and the second, the procedure followed to implement the federal action. In the case of federal execution, the trigger event is the existence of a failure on the part of the federated unit to respect its constitutional commitments. The event is observed by the federation, which has the power to interfere in federated affairs by sanctioning the failure of the member state. In contrast, federal intervention does not result from a failure by the federated unit, but rather a request for assistance from the federal authority because it cannot control public order in its territory. Logically, intervention is always requested by the member state, and cannot be imposed on it, although Huber concedes that in some cases intervention may be justified even without an actual request from the threatened state.114 The Swiss federal pact of 1815 is instructive from this point of view, since federal intervention can be seen as federal assistance requested by the cantons, which call for the help of the federation to resolve a public order problem in a member ←102 | 103→state, either because of internal disorder (§ 4, 1st par.)115 or because of external attack (§ 4, 2nd par. 2). Federal intervention is therefore an institution to protect a member state. It gives the federation a role that is similar to that of a protector, and this protectorship is dangerous for state independence, especially when the federation intervenes without being asked to by a member state. This possibility is accepted by the Huber in an emergency and in exceptional circumstances, and was demonstrated by practices in the German Confederation.
Federal execution, on the other hand, is an action taken against a member state; it is a sanction imposed by the federation as the guardian of the federal constitution. It is applied when a member state fails to respect the pact, and when the federation observes this and implements measures to ensure compliance. In this specific case, federal execution is substituted for the normal method used to settle conflicts between a federation and its member states, which is jurisdictional arbitration. It therefore gives preference to a political solution, as compared to a jurisdictional solution, and requires careful application. This is why, in a long article in 1927 entitled “Die Bundesexekution”, Hans Kelsen stated his opposition to this federal institution, which he wanted to replace with a control based on constitutionality. In his view, the very notion of Bundesexekution appeared to be a primitive legal technique to sanction legal relations, a sort of residue of international law in the federal state. Kelsen wanted, as far as possible, to eliminate every remnant of international law in the construction of the federal state.116 Kelsen’s thesis means, simply, that a verification of constitutionality by a jurisdictional ←103 | 104→authority would be a suitable substitute for federal execution (seen as forced execution). This is the logical conclusion of the whole Kelsenian system of federation, and the logical endpoint for his constitutional theory.
The other interesting point in the Kelsenian doctrine is the reversibility of federal execution, which can also act as a mechanism to sanction the federation for violating the rights of the member states. In Kelsen’s view, the dominant doctrine does not even consider “the possibility that an infraction can be attributed to the higher state or federative power (power of the federation stricto sensu)” and sees federal execution only as “a constraint that the higher state of federative power directs against a member state or individual state (Einzelstaat)”.117 In defiance of this dominant conception, Kelsen considers that the constraint can also be directed against the higher state, in other words against the federation stricto sensu. However, this would require making the procedure jurisdictional in nature, to avoid military execution, the war that Kelsen was trying to avoid. In a way, Schmitt and Kelsen agree on this point, even though Schmitt sees federal execution as a way for the federation to sanction member states. However, he rejects the idea that federal execution can be implemented in full, to the extent of forced execution. For example, as he writes in his Constitutional Theory: “That the federal enforcement action is a public law, not an international law act, is essentially part of the federation character, because the enforcement action otherwise would be a war, which would contradict the essence of the federation and dissolve it.”118
This discussion of the concepts that protect the federation and its member states shows how difficult it is to provide for a sanction against both political units: the federation and the member states. Secession raises the question of sanctions and federal execution, as illustrated below based on an atypical case of conflictual secession in the United States.←104 | 105→
Unlike the major theoretical debates, a historical examination of secession shows that the main aporia of federative secession lies in the practical means available to oppose a unilateral withdrawal. As we saw previously, the secession of Western Australia was “smoothed over”, as a first step, and then refused by the third party constituted by the British Empire, as represented by the parliament of Westminster, when it rejected the petition from the federated Australian state to obtain secession. However, this was a special case. A chemically pure case is provided in the case of the secession of the “southern” US states in 1861, which remains an open wound in American history, to the point where there is no constitutional literature worthy of the name that deals with this significant event. Although the controversy between Haynes and Webster in the House of Representatives in 1840 on the subject of slavery has been re-published, there is no book that gathers together the arguments for and against secession, just as there is no constitutional law textbook – as far as I know – that deals in depth with the secession of 1861. It will not be possible here to correct this deficiency.
However, I can highlight the irreducible views of the supporters and adversaries of secession, and also the totally impractical nature of federal execution in the event of a major constitutional conflict between the federation and its member states. The dilemma of federative secession is nowhere more evident than in the State of the Union Address given on December 3, 1860 by James Buchanan, the outgoing US President: the members of the federation perhaps had no right to leave the federation, but the federal government had no legal way to prevent them from doing so. When the Address was delivered, the Democratic Party had just lost the presidential election and President Buchanan, a Democrat, did not have the legitimacy of the newly-elected Republican President, Lincoln. This explains the lack of energy in his document; he was not in a position to impose a solution, since he was on already his way out.119 The document deserves close scrutiny if we want to understand the legal difficulty inherent in any federative secession. In the first part of his address, Buchanan explains that South Carolina had no constitutional ←105 | 106→right of secession. According to him, adopting the contractual theory of the constitution also meant accepting the corollary that the member states could leave the Union as and when they saw fit. This option, defended by the southern states, amounted to treating the federation (referred to be Buchanan as the “confederacy”) as if “the Confederacy is a rope of sand, to be penetrated and dissolved by the first adverse wave of public opinion in any of the States”.120 The message was clear and matched the classic thesis of supporters of the Union: secession is illicit, in other words unconstitutional.
However, in the second part of his address, James Buchanan reviewed the legal means available to the federal authorities to fight a claim to secession from the member states. He stated that the Executive had no such means: “Has the Constitution delegated to Congress the power to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy? If answered in the affirmative, it must be on the principle that the power has been conferred upon Congress to declare and to make war against a State. After much serious reflection I have arrived at the conclusion that no such power has been delegated to Congress or to any other department of the Federal Government.”121 His conclusion relied heavily on two speeches by James Madison to the Philadelphia Convention on May 31 and June 8, 1787, in answer to the question of whether the Union could use force against a member state.122 His conclusion revealed the limits of federal power ←106 | 107→in the face of radical opposition by a federated power: “The power to make war against a State is at variance with the whole spirit and intent of the Constitution.”123 The speech showed that the Union had no “constitutional right of coercion”.124
The result of this analysis may appear paradoxical: “although a State had no right to withdraw from the Union, the federal government had no practical means at its disposal to force it to remain against its will.”125 In the next part of his Address, Buchanan raised, for the sake of balance, the hypothesis – that he then excluded – that the federal authority had the constitutional right to force a recalcitrant member state to obey. He described the risk of civil war and the considerable damage it would wreak. This is why, at the end of the Address, he proposes a middle way, an “explanatory amendment” of the Constitution on the question of slavery. This Address by James Buchanan, which offers a true lesson on constitutional law, highlights the impractical nature of a sanction against a member state wishing to leave the federation. The US Civil War, which began after the departure of Buchanan and the arrival of Abraham Lincoln, clearly illustrates the difficulty.
After Congress failed in December 1860 to launch a constitutional revision procedure to reach a final compromise (including the maintenance of slavery), the new President of the United States, Abraham Lincoln, who officially took office on December 8, 1860, assumed responsibility for the serious constitutional conflict caused by the concerted actions of the southern states. Just after his inauguration, South Carolina declared its secession on December 20, 1860, in an ordinance adopted unanimously by the Convention, which proclaimed at the end: “the Union heretofore existing between this State and the other States of North America, is dissolved.” The United States was presented as a union of states, from which one member claimed the right to separate. This first secession was followed, in January 1861, by the secession of several other southern states which, in addition to seceding, formed a new confederacy at the Montgomery Convention. Shortly after his official inauguration, the new ←107 | 108→US President, Lincoln, had to face this challenge too. In his inaugural address on March 4, 1861, he listed various legal and political arguments against the claim of the southern states that they could withdraw from the Union,126 including the impossibility of dissolving a federal union such as that of the United States. “The Union of these States is perpetual”, Lincoln stated, and “it is safe to assert that no government proper ever had a provision in its organic law for its own termination.” And he continued, “If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it – break it, so to speak – but does it not require all to lawfully rescind it?”127 As a result, “It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void”.128 In another argument, secession is compared to anarchy, because it gives a minority discretion to oppose the decisions made by the legal majority and therefore denies the democratic principle that the only way to replace a political majority is through an electoral victory. “Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people.”129 Lincoln therefore considered implicitly that the majority/minority division had the same significance in a federal republic as in a unitary democracy. He invoked his legitimacy ←108 | 109→as an elected president to oppose the secessionist movement, since his election had proved the strength of the abolitionist movement. Here, Lincoln intended to express his opposition to the ideas of John Calhoun, based on the idea of an institutionalization of the rights of minorities through the idea of a “concurrent majority” to safeguard minority rights.
However, Lincoln did not just declare that secession was unconstitutional – he intended to combat it by ensuring that federal constitutional law prevailed. In other words, secession was considered as an internal public law dispute, under American federative law. He deemed the secession of the southern states to be a grave breach of the federal public order, one that the Union was entitled to suppress. This led him to describe the secessionist states as “insurrectionary” or “revolutionary”. To support this reasoning, he had to assume that the Union, despite the secession proclaimed by certain states and the loss of effective federal power over certain confederate areas, continued to exist as the legitimate federal government. As the wielder of executive power, he was entitled to his prerogatives under the federal constitution of the United States to ensure “that the laws of the Union be faithfully executed in all the States”.130 As the President of the Republic, Lincoln believed that his duty was to ensure that the Union could “constitutionally defend and maintain itself”.131
This duty authorized him, he believed, to exert federal power over individuals living in the southern states, even if, theoretically, the American federation, as a collective body, had no power over the other collective bodies, the individual states.132 By presenting himself as the ←109 | 110→defender of the unity of the American nation and federal public order, Lincoln could deal with the southern “insurrectionary” or “revolutionary” states and use force to execute federative law. He reasoned as though the federation was a state (a federal state)133 and above all as though the member states were simply individuals using force to resist the material execution of the law, which is prohibited on principle in a state.134
This speech by Lincoln, as one might expect, failed to convince the southern states, which understood that war was approaching. The military conflict erupted on April 12, 1861 when the federal Fort Sumter was shelled by the confederate forces. Its commander, short of supplies, surrendered the next day. War could still be avoided, since it was possible to claim that South Carolina had simply recovered a federal property in the name of its territorial sovereignty. However, Lincoln, in his proclamation of April 15, 1861 to the governors of the states in the Union, called up the state militias, numbering 75,000 men, to repress manoeuvres “too powerful to be suppressed by the ordinary course of judicial proceedings or by the powers vested in the marshals by law”,135 confirming that a war within a federation, between the federation and other member states, was a form of forced execution to resolve a political conflict. It is striking that, in the various proclamations he used to create a state of war, Lincoln referred only imprecisely to the constitution to justify the power to declare war, mobilize the state militias, convene an extra session of the United States Congress, blockade the harbours of confederate cities, and declare as pirates any person who attacked Union shipping. In his Proclamation Calling Forth the Militia, he simply stated ←110 | 111→that the execution of the laws of the United States had been obstructed in the State of South Carolina and six other confederate states, and that, as President of the United States, he was entitled to call forth the militia “in virtue of the power in me vested by the Constitution and the laws”.136 Similarly, he justified convening an extra session of Congress because of the “present condition of public affairs” and “the power in me vested by the Constitution”, without referring to a single article of that Constitution.137
The response of the South, or the Message to Congress of Jefferson Davis – The response from Jefferson Davis, president of the confederate states, is found in his message to congress on April 29, 1861.138 War had already begun following President Lincoln’s proclamation. The Message, intended to ratify the constitution of the confederate states, refuted, point by point, the claims made by Lincoln in his inaugural speech. Davis expressed the classical point of view of the partisans of States’ Rights, that the clauses of the Philadelphia Convention were intended to establish the United States government as a “compact between States”, meaning that the federal powers could not be seen as a “national government, set up above and over the States”. The southern states believed that the federal creature had escaped from the hands of its creators and had been “perverted into a machine” to allow the northern states to dominate the southern states.139 Above all, Davis criticized Lincoln for basing his defence of the rights of ←111 | 112→the Union on the principle of democratic majority, shattering federalism by daring to compare the relation between the Union and the states (between the federation and its member states) to the relation between a state and a county situated within it.140 Most of Davis’ Message was a reminder that slavery in the United States was indirectly recognized by the federal constitution, which contained two clauses on fugitive slaves and the future prohibition of the slave trade, and that the northern states wanted to impose abolition on the southern states. Referring above all to US political history, Davis claimed that, since 1798 (the date of the Kentucky and Virginia resolutions), there had always existed a political party that recognized the right of the states (the member states) to defend themselves against the actions of the federation they considered harmful. He invoked the “right of self-preservation” of the member states of the Union, as sovereign states, authorizing them, as in the present case of secession, to break away from the federal government and “dissolve their connection with the other States of the Union”.141 The rest of the Message was intended to justify the actions undertaken to resist the Union and President Lincoln, who was considered by the South as the person who initiated military hostilities and the war between the Confederacy and the rest of the Union. Davis ended by invoking, not only the Divine Power, but also the southern states’ “inherent right to freedom, independence, and self-government”.142←112 | 113→
The secessionists also rejected the use of terms taken from the lexicon of internal public law and described the conflict as a war, in other words using a concept from international law143 that the dominant doctrine considered to apply only to confederations144 and not to federal states. However, as we saw above, President Buchanan had already described the Union as a Confederacy and not as a federal state, which provides extra proof of the lack of relevance of the distinction between Bundesstaat and Staatenbund to understand the real functioning of a federation.
The consequence of this radical approach is that secession cannot be sanctioned by the federation. Taken to its logical conclusion, secession leads to the breakup of the federation into two enemy parties, supporters and adversaries. The lack of unity is shown by the fact that some member states claim to represent the federation, which continues to exist and to use federative law to combat, even using force, the secession claimed by the other member states. However, the seceding states, in turn, consider that they are no longer bound by the federative link, and deny the legitimacy of the federal authority that wants to impose federal law by force. The conflict, before being an armed conflict, is a conflict of legitimacy. It is because the strength of the federation is considered gravely illegitimate by the seceding parties that they oppose it.
This type of conflict of legitimacy culminates in a conflict over representation. The “secessionists” consider that the “unionists” – representing the federation – have usurped their functions and no longer truly represent them. The unity of the federative whole begins to dissolve, and an irremediable schism appears between the two parties, one wishing to maintain the federation and the other wishing to leave. From a conceptual point of view, the arithmetic question opposing a majority to a minority is legally moot. In the cases studied here, the secessionists have been in the minority, but if the southern states had become a majority (in terms of the number of states) in 1861, nothing ←113 | 114→would have changed in the reasoning presented here – on the one hand the legal federal authority, President Lincoln, claiming to represent the Union and the continuity of the federation, and on the other the southern states, assembled in a new confederacy, denying the right of the Union to represent them and putting forward other representatives named in the confederate constitution of March 7, 1861. Taken to the extreme, the secession of single member state poses the same problem as the secession of a majority of states.145 The actual number is a secondary matter, and the “secessionists” may form a majority and the “unionists” a minority, provided that the division between them is between those who want to leave the federation and those who want to remain.
The conflict of representation becomes, in fact, a conflict of sovereignty. Although the federation is based on the idea, as identified by Carl Schmitt, that the question of sovereignty and of pre-eminence between the federation and member states will never be raised, the American conflict of 1861 shows how it quickly becomes a conflict. Jefferson Davis uses the language of sovereignty to respond to Abraham Lincoln and his own use of the same language. In the United States, the point of view of the victors has prevailed, and history books talk about the “Civil War”.146 In other words, “the fundamental controversy about where sovereignty resides”, which was never settled in the debate between “unionist” Webster and “nullifier” Calhoun, was only resolved “following the civil war between the northern and southern states” for the greater benefit of “the sovereignty of the United States which was finally consolidated”.147
Last, the most far-sighted comment about the war was made by Walt Whitman: “The South was technically right, and humanly wrong.”148 I believe this provides yet another reason to look in more depth at the ←114 | 115→constitutional arguments advance on both sides, from the South and the North, to understand the meaning to be given to the word “secession”, the weapon of last resort in a conflict between a member state and the federation. Secession can appear as an ultima ratio, a right to obtain justice oneself, which explains part of its bad reputation. It is an argument that needs to be handled carefully, because the risk of war accompanies the threat of secession if it is carried out. At the same time, secession within a federation must also be seen as “the ultimate possibility for a people to choose its destiny”.149 This presupposes that the member state of the federation concerned retains a strong sense of its political existence, and that its citizens see themselves as forming a “people” able to break their ties to another political body that they consider, at a specific point in time, as an oppressor they can no longer endure. Secession contains an element of tragedy that is only found, in the field of constitutional law, in its equivalent: the right of individuals to resist oppression by the state.
1 I would like to thank Jean-Marie Denquin for his precise and benevolent re-reading of this paper, and also my Canadian colleagues, Professor and Dean Jean-François Gaudreault-Desbiens for his invitation to Université de Montréal, Professor Gagnon for his invitation to present the paper at the UQAM conference, and Hugo Cyr for his comments.
2 Reference re Secession of Québec,  2 S.C.R. 217, par. 125.
3 This is what can be learned from the paper by Sanford Levinson, “The 21st Century Rediscovery of Nullification and Secession in American Political Rhetoric”, in Sanford, L. (ed.), Nullification and Secession in Modern Constitutional Thought, Kansas, University Press of Kansas, 2016, not. p. 36 ff.
4 Zimmerman, A., “The still reluctant state: Western Australia and the conceptual foundation of Australian Federation”, in Appleby, G., Aroney, N., John, Th. (eds.), The Future of Australian Federation: Comparative and Interdisciplinary Perspectives, Cambridge, Cambridge University Press, 2012, p. 75–95.
5 “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements” (Art. I-50, al. 1, TEU). The following paragraphs describe the procedure and its effects. Even though the terms of the withdrawal are to be negotiated, it can be deduced from the text that the withdrawal is unilateral, as shown by the fact that the initial decision must follow the “constitutional requirements” of the federated state rather than the rules of European law.
6 This is clear also in an article by Hans Kelsen, “Du droit de se retirer de l’organisation des Nations Unies” , in Kelsen, H., Écrits français de droit international, pres. by C. Leben, Paris, Presses universitaires de France, 2001, p. 270 ff. He cannot avoid making a comparison with the right of secession, especially on p. 283–286.
7 Schmitt, C., Théorie de la Constitution, transl. by L. Deroche, Paris, Presses universitaires de France, 1993, p. 521–522 (Verfassungslehre K. 29, par. III, p. 375). Translation modified by: “Unmöglichkeit, Anwendbarkeit und Aufhebbarkeit dieses Vertrages” (p. 392).
8 Rubin, E., “Federalism as a Mode of Governance: Autonomy, Identity, Power and Rights”, in Lev, A. (ed.), The Federal Idea: Public Law between Governance and Political Life, Oxford & Portland, Hart Publishing, 2017, p. 130.
9 See Jovanovic, M., Constitutionalizing Secession in Federalized States: A Procedural Approach, Utrecht, Eleven International Publishing, 2007.
10 Tosi, D. E., Secessione e costituzione tra prassi et teoria, Napoli, Jovene, 2007, 350 p. The same can be said of Ferraiuolo, G., Costituzione, federalismo, secessione: un itinerario, Napoli, Editoriale scientifica, 2016, p. 213 (with thanks to Jorge Cagiao y Conde for sending me the book).
11 Kiminich, O., “A ‘Federal’ Right of Self-Determination?”, in Tomuschat, Ch. (ed.), Modern Law of Self-Determination, Dordrecht & Boston, Martinus Nijhoff, 1993, p. 83–100.
12 Sunstein, C. R., “Secession and Constitutionalism”, The University of Chicago Law Review, vol. 58, n° 2, 1991, p. 634–635.
14 He does this in order to discuss the thesis of John Stuart Mill that multinational states are incompatible with the modern notion of democracy.
15 MacMahon, A. W. (ed.), Federalism: Mature and Emergent, New York, Doubleday, 1955.
16 Bowie, R. R., Friedrich C. J., Studies in Federalism, Boston & Toronto, Little Brown, 1954.
17 Ibid., p. 765–766.
18 Ibid., p. 770–771.
19 Nicolaidis, K., Howse, R. (eds.), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union, Oxford, Oxford University Press, 2001.
20 Gaudreault-DesBiens, J.-F., Gélinas, F. (eds.), Le fédéralisme dans tous ses états: gouvernance, identité et méthodologie, Brussels, Bruylant; Cowansville, Yvon Blais, 2005.
21 Levinson, S., Nullification and Secession in Modern Constitutional Thought, Lawrence, Kansas, University Press of Kansas, 2016.
22 Jellinek, G., Allgemeine Staatslehre, 3rd ed., Athenaeum, 1911, p. 768. Transl. of 2nd ed. by G. Fardis, L’État moderne et son droit, t. II, Paris, Panthéon-Assas, 2002, p. 538–539.
23 See the analyses by Charles Durand, in Durant, C., Confédération d’États et État fédéral. Réalisations acquises et perspectives nouvelles, Paris, Librairie Marcel Rivière et Cie, 1955.
24 I refer to my own book, Théorie de la Fédération, Paris, Presses universitaires de France, 2007, chap. 2.
25 Combacau, J., Sur, S., Droit international public, 6th ed., Paris, Montchrestien, 2004, p. 264. See also the definition proposed by Gérard Cahin: “the action by which a community is detached from a state to form a new state on the excised portion of the territory or, exceptionally, to join an existing state”, in Cahin, G., La France, l’Europe et le Monde. Mélanges en l’ honneur de Jean Charpentier, Paris, Pedone, 2008, p. 41.
26 Kohen, M. (ed.), Secession. International Law Perspectives, Cambridge, Cambridge University Press, 2006, p. 3.
27 Combacau, J., Sur, S., op. cit., p. 263 ff.
28 Ibid., p. 264.
30 Ibid., p. 266 ff.
31 Christakis, T., Le droit à l’autodétermination en dehors des situations de décolonisation, Paris, La Documentation française, 1999.
32 “The right of secession, recognized unconditionally for colonial peoples in contemporary practice, has on the contrary been constantly denied to dependent peoples who do not fall into this category by a sort of syndicate of established states, and there is no sign in the events of recent years of any sustainable legal change to reverse this situation” (Combacau, J., Sur, S., op. cit., p. 268).
33 Only a minority of legal experts defend the idea of “remedial secession”. See Van den Driest, S., Remedial Secession. A Right to External Self-Determination as a Remedy to Serious Injustices, Cambridge, Intersentia, 2013.
34 From the subtitle of the book by Buchanan, A., Secession: the Morality of Political Divorce from Fort Sumter to Lithuania and Quebec, Boulder, Westview Press, 1991.
35 Ibid., p. 75.
36 This point is highlighted by A. Buchanan who talks about “group rights” as opposed to “individual rights” (op. cit., p. X–XI).
37 If the parent state gives its consent in whatever way, another legal hypothesis applies, the case of a “transfer of territory”, which France, for example, has experienced many times with its overseas territories.
38 Daillier, P., Nguyen Quoc, D., Pellet, A., Droit International Public, 5th ed., Paris, L.G.D.J., 1994, p. 500, n°346.
39 Blay, S., cited by Papartzis, P., “Secession and international law: the European Perspective”, in Kohen, M. (ed.), Secession. International Law Perspectives, op. cit., p. 363, note 45.
40 Advisory opinion n°1, November 29th, 1991, RGDIP, 1992, p. 265. With respect to the Arbitration Commission, see the remarks by Charpentier, J., “La Déclaration des Douze sur la reconnaissance des nouveaux États”, RGDIP, vol. 96, 1992, p. 344–345. See also RGDIP, 1993, p. 565–589.
41 Advisory opinion n°1, ILM 31 (1992), 1494.
42 Papartzis, P., “Secession and international law: the European Perspective”, in Kohen, M. (ed.), Secession. International Law Perspectives, op. cit., p. 365.
43 Voir Murswiek, D., “The issue of a right of secession reconsidered”, in Tomuschat, Ch. (ed.), Modern Law of Self Determination, New York, Springer, 1993, p. 21–39. See also Blay, S., “Self Determination a Reassessment in the Post-Communist Era”, Denver Journal of International Law and Policy, vol. 22, 1994, p. 310–312.
44 Kohen, M., “Introduction”, in Kohen, M. (ed.), Secession. International Law Perspectives, op. cit., p. 6.
45 Ibid., p. 3.
46 Ibid., p. 4.
47 See in particular the thesis by Beaudouin, A., Uti possidetis et sécession, Paris, Dalloz, 2011.
48 This is one of the ideas developed in my Théorie de la Fédération (op. cit., see Part II, p. 99–193).
49 This point has been impeccably demonstrated by Schönberger, C., in his thesis Unionsbürger: Europas föderales Bürgerrecht in vergleichender Sicht, Tübingen, 2005. For a summary in French, see “La citoyenneté européenne en tant que citoyenneté fédérale. Quelques leçons à tirer du fédéralisme comparatif”, Annuaire de l’Institut Michel Villey, 2009, n°1, p. 255–274.
50 Dominicé, Ch., “The Secession of the Canton of Jura in Switzerland”, in Kohen, M. (ed.), Secession. International Law Perspectives, op. cit., p. 454.
51 See Kohen, M., Possession contestée et souveraineté territoriale, Paris, Presses universitaires de France, 1998, p. 407–423.
52 This is demonstrated in the article “Das Volk in einem Bund”, in Buchstein, H., Offe, C., Stein, T. (eds.), Souveränität, Recht, Moral: die Grundlagen politischer Gemeinschaft, Frankfurt am Main, Campus, 2007, p. 82–91.
53 Greber, A. R., Die Vorpositiven Grundlagen des Bundesstaates, Basel, Helbing & Lichtenhahn, 2000, p. 247.
54 In its Advisory Opinion of 1998, the Supreme Court incidentally refers to Québec as a sovereign state, clearly marking the “state” credentials of a community that is a member of a federation.
55 All the relevant historical documents can be found on the website: www.wvculture.org/history/statehood/primarydocuments.html.
56 For the details of the procedure, see Aubert, J.-F., Traité de droit constitutionnel suisse. Supplément, n°544–552, p. 58 ff.
57 See the federal order of 9 March 1978 (FF 1978, I, 663) and its acceptance following a constitutional vote (FF 1978, II, 1278). The text of the revision is in Kölz, A., Quellenbuch, t. II, p. 469.
58 The text of the constitution of Jura dated 3 February 1977 is in Kölz, A., Quellenbuch, t. II, p. 98 ff.
59 Dominicé, Ch., “The Secession of the Canton of Jura in Switzerland”, in Kohen, M. (ed.), Secession. International Law Perspectives, op. cit., p. 456.
61 The case in which the two types of secession would coincide would be if the part of the federated state wanted to leave not just the federated state, but also the federation; for example, if the Swiss canton of Jura had also wanted to become part of France.
62 Aubert, J.-F., op. cit., t. I, n°561, p. 214. Technically, this type of prohibition is interpreted as limiting the power of constitutional amendment, since that power cannot be used to freely amend the former Article 1 of the 1874 constitution, which listed the cantons limitatively. Legally speaking, the federal constitutional lawmakers cannot “remove” the name of a canton, while as we have just seen, in the case of Switzerland, they can easily add one.
63 As noted in Aubert, J.-F., op. cit., t. I, n° 541, p. 207.
64 Greber, A., op. cit., p. 248.
65 Reference re Secession of Québec, op. cit., par. 42.
66 Based on the previously cited article by Zimmerman, A., “The still reluctant state: Western Australia and the conceptual foundation of Australian Federation”, in Appleby, G., Aroney, N., John, Th. (eds.), op. cit., p. 79–82. We haven’t been able to consult the work of Craven, G., Secession: The Ultimate States Right, Melbourne, Melbourne University Press, 1986 (with thanks to Nicholas Aroney for informing me of its existence).
67 See the conclusion to the first grand Ordinance of Secession, issued by South Carolina on December 24th, 1861. It reads as follows: “We, therefore, the People of South Carolina, […] have solemnly declared that the Union heretofore existing between this State and the other States of North America, is dissolved, and that the State of South Carolina has resumed her position among the nations of the world, as a separate and independent State” (avalon.law.yale.edu/19th_century/csa_scarsec.asp).
68 The Ordinance of Secession of Virginia, dated April 17th, 1861, ratified by a referendum on May 23rd, 1861, mentions the dissolution of the bond with the other states: “Now, therefore, we, the people of Virginia, do declare and ordain, […] the union between the State of Virginia and the other States under the Constitution aforesaid is hereby dissolved, and that the State of Virginia is in the full possession and exercise of all the rights of sovereignty which belong and appertain to a free and independent State” (www.constitution.org/csa/ordinances_secession.htm#Texas) (italics added).
69 Allgemeine Staatslehre, Berlin, Springer, 1925 (Nachdruck, Wien, 1993), p. 224–225.
70 As noted, “No federal constitution makes provision for secession” (Bowie, R., Friedrich, C. (eds.), op. cit., p. 765).
71 Weiler, J., “Alternatives to Withdrawal from an International Organization: the Case of European Economic Community”, Israel Law Review, vol. 20, n°2–3, 1985, p. 282.
72 Article 5 of the Vienna Final Act (1820) states that “the Confederation has been founded as an indissoluble union” and continues “and therefore no member of the same is at liberty to secede from this union.” (“Der Bund ist als ein unauflösicher Verein gegründet und es kann daher der Austritt aus diesem Verein keinem Mitgliede desselben frey stehen”).
73 The formula is found in the Treaty on the Creation of the USSR in its final article, article 26, and was repeated in the 1924 constitution: “Each one of the member Republics retains the right to freely withdraw from the Union.” Next, it is found in article 17 of the 1936 constitution: “To every Union Republic is reserved the right freely to secede from the U.S.S.R.” In French, this is translated as “À toute République de l’Union est réservé le droit de se séparer librement de l’Union” (cited in the article by H. Kelsen, op. cit., p. 283). Georges Scelle noted the paradoxical nature of this right in a Stalinian constitution in the preface to his thesis on federalism in Russia, since in his view it shows “the radical antagonism between the core idea of Marxism and that of federalism, while the most advanced federal political constitution we have studied, the only one that includes, at least normatively, free secession and free aggregation (the features of deep federal dialectics) is, in fact, Marxist” (Preface to De Lacharrière, G., L’idée fédérale en Russie de Riourik à Staline, Paris, Pedone, 1945, p. VII).
74 For a summary of this type of argument, see Durant, Ch., op. cit., p. 115.
75 “The secession of a province from Canada must be considered, in legal terms, to require an amendment to the Constitution, which perforce requires negotiation.” (par. 84).
76 The official French translation, “souveraineté de la population du Canada” (par. 85), appears to me to be clumsy because, in constitutional law, sovereignty is assigned not to the population, but to the people.
77 Greber, A., op. cit., p. 177.
78 Christakis, T., op. cit., p. 316–317. There is no right of secession, except in the specific and now unusual case of decolonization.
79 The goal of the thesis of Annouche Beaudouin, cited above, is to show that law is present in the reflections of international law experts on the principle of effectiveness.
80 Voir sur ce point Feldman, J.-Ph., La bataille américaine du fédéralisme. John Calhoun et l’annulation, Paris, Presses universitaires de France, 2004 (an abridged version of his law thesis).
81 This is one of the contributions made by the book by Allen Buchanan which shows, for example, how defending the Union took precedence for Lincoln over the abolition of slavery (op. cit., p. 1). He cited his open letter to Horace Greeley in 1862, after Greeley criticized him for not declaring the emancipation of slaves in Union-held territory, in which he wrote “My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery.”
82 The expression “self-preservation” is borrowed here from J.-Ph. Feldman, commenting a passage from a letter written by Calhoun in January 1833: “We must not think of secession, but in the last extremity”, letter to Preston, January 1833 (cited by Feldman, J.-Ph., op. cit., p. 842).
83 Barker, A., La guerre de Sécession, Paris, Seghers, 1961, p. 163.
84 Wheare, K. C., Federal Government, Oxford, Oxford University Press, 1963, p. 87. He makes a clear distinction between the legality and opportuneness of secession.
86 As J.-M. Denquin points out, “what legitimizes democracy is the right of citizens to become involved in their own affairs and express their views on decisions that will affect their lives”, (Denquin, J.-M., La monarchie aléatoire, Paris, Presses universitaires de France, 2000, p. 123–124).
87 See Hannebeck, A., Der demokratische Bundesstaat des Grundgesetzes, Berlin, Duncker u. Humblot, 2003, who offers a pluralist reading of democracy under the German Basic Law, and gives new meaning to the concept of the Landesvolk (federated people) as opposed to the Bundesvolk (federal people).
88 To admit this is to deny the principle of federative plurality, and therefore to transform the federation into a state.
89 This is the problem that is totally ignored by Carl Schmitt in his own theory of federation. He sees the existential aspects of politics only through the right to wage war, while democracy is more than the right to die for one’s country. For more on Schmitt’s blindness to the reconciliation of democracy and federalism, see the persuasive arguments of Greber, A., op. cit., p. 191–193.
90 It is perhaps time to challenge the central role of the law of participation in the legal dogma on federalism, following the lead of A. Greber in the first chapter of his book (op. cit., p. 12–19).
91 Reference re Secession of Québec, op. cit., par. 88.
92 “However, we are equally unable to accept the reverse proposition, that a clear expression of self-determination by the people of Quebec would impose no obligations upon the other provinces or the federal government. The continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. This would amount to the assertion that other constitutionally recognized principles necessarily trump the clearly expressed democratic will of the people of Quebec. Such a proposition fails to give sufficient weight to the underlying constitutional principles that must inform the amendment process, including the principles of democracy and federalism. The rights of other provinces and the federal government cannot deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others” (Reference re Secession of Québec, op. cit., par. 92).
93 Aubert, J.-F., op. cit., t. I, n°561, p. 214.
94 As was done by the Supreme Court of Canada, obviously based on the “means” suggested by the parties involved in the Québec secession case.
95 This hybrid is the statutory pact, which ranges from “legal community” to “legal person” and cannot be understood in terms of private common law (Greber, A., op. cit., p. 176 and note 511, p. 176). On the question of the federative constitution as a pact, see my article “La notion de pacte fédératif. Contribution à une théorie constitutionnelle de la Fédération”, in Mohnhaupt, H., Kervégan, J.-F. (eds.), Liberté sociale et contrat dans l’ histoire du droit et de la philosophie, Francfort, Klostermann, 1997, p. 197–270.
96 A kind of “de-linking”, in German: “ein Ausscheiden aus einer existenziellen Bindung” (Greber, A., op. cit., p. 177).
97 Ibid., p. 186–187.
98 “The obligation of loyalty (Treuepflicht) extends to the procedure of separation (divorce, Ausscheidungsverfahren) in which the parties are bound to preserve the interests of the other parties” (Greber, A., op. cit., p. 177).
99 Ibid., p. 186–187.
100 As Greber notes, “a unilateral withdrawal must be understood eo ipso as a violation of the pact entailing the legal consequences set out in the federative pact” (ibid., p. 187).
101 The obligation to negotiate is the point of equilibrium reached by the Supreme Court of Canada (par. 104).
102 “Ohne überzeugende Argumentation, die sich auf eine staatstheoretische Konstruction des Bundesstaates”, dans Greber, A., op. cit., note 1, p. 247.
103 “Verfassungsrevision”, in Greber, A., op. cit., note 1, p. 248. He adds: “Secession must lead to an agreement (Einigung) endorsed by an amendment to the Constitution.”
104 The most doctrinal description is found in Kelsen, H., “Die Bundesexekution”, Mélanges Fritz Fleiner, Tübingen, Mohr, 1927, p. 127–187. On this point, see my article “Hans Kelsen, théoricien constitutionnel de la Fédération”, in Herrera, C.-M. (ed.), Actualité de Kelsen en France, Paris, L.G.D.J., 2001, p. 47–84.
105 As pointed out by Aubert, J.-F., “It is enough for the federal council to ask the confederate governments to repudiate an illegal attitude that it deems illegal for them to immediately obey its ‘wish’. The invitation is a polite order” (Aubert, J.-F., op. cit., t. I, n° 804, p. 303). Federal execution begins when the canton fail to obey its “wish”, or recommendation, and the execution measures are graduated, ranging from financial pressure to substitution to “military execution” (ibid., n° 809 et n° 812, p. 305).
106 The expression is used by Aubert, J.-F., op. cit., t. I, n°813, p. 306.
107 For a commentary on this concept in French, see Aubert, J.-F., op. cit., t. I, n° 803 ff; p. 306 ff, which is based on comparative law observations from the United States.
108 I rely here on the definitions of Huber, E. R., in the article “Bundesexecution und Bundesintervention”, Archiv des öffentlichen Rechts, t. 79, 1953–1954, p. 1 ff, reworked in Volume 3 of the monumental Deutsche Verfassungsgeschichte, p. 543.
109 See the relevant remarks of Carl Schmitt in Schmitt, C., op. cit., chap. 30, I, 2, p. 528–529 (Verfassungslehre, p. 380–381).
110 Ibid., p. 528 (Verfassungslehre, p. 380).
111 “Bundesexecution und Bundesintervention”, p. 1. The distinction is based on the example of the deutsche Bund, referring to article 26 in the Vienna Final Act for federal intervention and to articles 19 and 31 for federal execution.
112 Ibid., p. 4.
113 Ibid., p. 6.
114 From this point of view, the definition by Huber is questionable because it relies too much on the practice of the Deutscher Bund, which was extensive and open to criticism. Practice in the United States and Switzerland confirms that the request for intervention is necessary as a procedural criterion, and is the only way to preserve the autonomy of the federated state and avoid falling straight into federal tutorship.
115 “In case of external or internal danger, every canton has the right to demand a loyal attitude from its Confederates. When troubles break out in one canton, the government in question may urge the help of the other cantons, but the Vorort should be notified immediately; in case of an enduring danger, the Tagsatzung will, at the request of the government in question, take additional measures” (article 4, par. 1, 1815).
116 In his General Theory of Law and State, Kelsen describes the dynamic decentralization of international law concerning both the creation of law (statutes, etc.) and its application. On the latter point: “General international law leaves it to the parties to a controversy to ascertain whether one of them is responsible for a delict, as the other claims, and to decide upon, and execute, the sanction. General international law is, in this respect, too, a primitive law. It has the technique of self-help. It is the State, violated in its right, which is authorized to react against the violator by resorting to war or reprisals. Theses are the specific sanctions provided by general international law.” (transl., p. 375).
117 Kelsen, H., “Die Bundesexekution”, in Festchrift Fritz Fleiner, 1927, p. 130.
118 Schmitt, C., op. cit., p. 528 (chap. 30), Verfassungslehre, p. 380, 397.
119 A point raised by Belperron, P., La guerre de Sécession, 1861–1865: ses causes et ses suites, Paris, Plon, 1947, p. 214.
120 “If this be so, the Confederacy is a rope of sand, to be penetrated and dissolved by the first adverse wave of public opinion in any of the States”, Fourth Annual Message to Congress on the State of the Union (Richardson, J., Messages of Presidents, vol. V, p. 626–653). Taken from the website American presidency history: www.presidency.ucsb.edu/ws/?pid=29501.
121 “Has the Constitution delegated to Congress the power to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy? If answered in the affirmative, it must be on the principle that the power has been conferred upon Congress to declare and to make war against a State. After much serious reflection I have arrived at the conclusion that no such power has been delegated to Congress or to any other department of the Federal Government.”
122 The first quote is as follows: “The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.” The second is: “Any government for the United States formed on the supposed practicability of using force against the unconstitutional proceedings of the States would prove as visionary and fallacious as the government of Congress.”
124 The two remarks are brought together by J.-Ph. Feldman, op. cit., p. 861. Buchanan’s speech is published in Richardson, J., Messages of Presidents, vol. V, p. 626–653.
125 Lambert, J., Histoire constitutionnelle des États-Unis, Paris, Sirey, p. 308.
126 See the summary of the address in Feldman, J.-Ph., op. cit., p. 862–864.
127 “If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it – break it, so to speak – but does it not require all to lawfully rescind it?”, Inaugural Address, March 4th, 1861 (avalon.law.yale.edu/19th_century/lincoln1.asp). Excerpts from the Address are in Heffer, J., L’Union en péril: la démocratie et l’esclavage (1829– 1865), Nancy, Presses universitaires de Nancy, 1987, p. 200 ff.
128 “It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances” (ibid).
129 “Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people” (ibid.).
130 “I consider that, in view at the constitution and the laws, the Union is unbroken; and to the extent of my ability I shall take care, as the Constitution itself expressly enjoins upon me, that the laws of the Union be faithfully executed in all the States” (ibid.).
131 “Doing this I deem to be only a simple duty on my part, and I shall perform it so far as practicable unless my rightful masters, the American people, shall withhold the requisite means or in some authoritative manner direct the contrary. I trust this will not be regarded as a menace, but only as the declared purpose of the Union that it will constitutionally defend and maintain itself” (ibid.).
132 An especially important application of this principle (raised by Madison in Federalist Papers) is the general “no commandeering” rule in the United States, mentioned by Zoller, E., in Cours de La Haye, “Aspects internationaux du droit constitutionnel. Contribution à la théorie de la fédération d’États”, RCADI, t. 294, 2002, p. 137, n° 155 (with jurisprudence from the Supreme Court). The rule essentially prevents the federation from using direct constraints (except legal constraints) against a member state. For example, the union cannot give orders to a federated state about how to exercise its legislative power. For a comparative study of the rule, see D. Halberstam, “Comparative Federalism and the Issue of Commandeering”, in Nicolaïdis, K., Howse, R. (eds.), The Federal Vision, Oxford, Oxford University Press, 2001, p. 213 ff, which shows a different situation in present-day Germany.
133 In a federal state, explains Louis Le Fur, “in the event of resistance from a specific state, there can be revolt, or rebellion, but not outright war” (Le Fur, L., État fédéral et confédération d’États, Paris, Panthéon-Assas, 2000, p. 685). This means, according to Murray Forsyth, that in a federal state, constitutional law “entirely replaces” international law (Forsyth, M., Union of States: The Theory and Practice of Confederation, Leicester, Leicester University Press, 1981, p. 143).
134 As pointed out by Durant, Ch., op. cit., p. 107.
135 “Too powerful to be suppressed by the ordinary course of judicial proceedings or by the powers vested in the marshals by law” (Proclamation of April 15th, 1861 by President Lincoln Calling Forth the Militia and Convening an Extra Session of Congress: presidency.proxied.lsit.ucsb.edu/ws/index.php?pid=70077).
136 “Now, therefore, I, Abraham Lincoln, President of the United States, in virtue of the power in me vested by the Constitution and the laws, have thought fit to call forth, and hereby do call forth, the militia of the several States of the Union to the aggregate number of 75,000” (ibid.).
137 “Deeming that the present condition of public affairs presents an extraordinary occasion, I do hereby, in virtue of the power in me vested by the Constitution, convene both Houses of Congress. Senators and Representatives are therefore summoned to assemble at their respective chambers at 12 o’clock noon on Thursday, the 4th day of July next, then and there to consider and determine such measures as, in their wisdom, the public safety and interest may seem to demand” (ibid.).
138 The text is presented in Commager, H., Documents of American History, n°203, p. 389–391, and commented in Feldman, J. Ph., op. cit., p. 865. The quotes come from the version available on Internet: avalon.law.yale.edu/19th_century/csa_m042961.asp.
139 “It is none the less true that all these carefully worded clauses proved unavailing to prevent the rise and growth in the Northern States of a political school which has persistently claimed that the government thus formed was not a compact between States, but was in effect a national government, set up above and over the States. An organization created by the States to secure the blessings of liberty and independence against foreign aggression, has been gradually perverted into a machine for their control in their domestic affairs. The creature has been exalted above its creators; the principals have been made subordinate to the agent appointed by themselves” (ibid.).
140 “He asserts as an axiom, which he plainly deems to be undeniable, of constitutional authority, that the theory of the Constitution requires that in all cases the majority shall govern; and in another memorable instance the same Chief Magistrate did not hesitate to liken the relations between a State and the United States to those which exist between a county and the State in which it is situated and by which it was created. This is the lamentable and fundamental error on which rests the policy that has culminated in his declaration of war against these Confederate States” (ibid.).
141 “In the exercise of a right so ancient, so well established, and so necessary for self-preservation, the people of the Confederate States, in their conventions, determined that the wrongs which they had suffered and the evils with which they were menaced required that they should revoke the delegation of powers to the Federal Government which they had ratified in their several conventions. They consequently passed ordinances resuming all their rights as sovereign and Independent States and dissolved their connection with the other States of the Union” (ibid.).
143 For a description of the alternative, see Huber, E. R., Verfassungsgeschichte, t. 3, p. 543.
144 Louis Le Fur is once again the obvious witness: “If a confederated state refuses to fulfill the obligations to which it has consented in a pact of union, the confederation clearly has the right to oblige it to perform them using military force. But, unlike what would happen if the recalcitrant member was a member of a federal state or a fortiori a mere province, when a confederated state opposes force with force, it is a genuine war and not a revolt by a non-sovereign community against the state of which it forms a part”, (Le Fur, L., op. cit., p. 502–503).
145 This is a remark made by Christoph Schönberger to which I subscribe wholeheartedly.
146 The legal reality was more complex, as noted by A. Tunc and S. Tunc, who observe that soldiers in the South were accorded the status of belligerents (and were not traitors), just as the Confederates’ ability to make international agreements with third-party states was recognized, etc. See Tunc, A., Tunc, S., Histoire constitutionnelle des États-Unis, Paris, Monchrestien, t. I, n°63, p. 170.
147 Grimm, D., “La souveraineté”, in Chagnollaud, D., Troper, M. (eds.) Traité international de droit constitutionnel, t. 1, “Théorie de la Constitution”, Paris, Dalloz, 2012, p. 576.
148 Cited by Belperron, P., La guerre de Sécession, ses causes et conséquences, Paris, Plon, 1949, p. 211.
149 We have transposed the formula used by A. Lamassoure when discussing the right to withdraw from the European Union, which was already provided for in the Treaty establishing a Constitution for Europe: Lamassoure, A., Histoire secrète de la Convention, Paris, Albin Michel and Fondation Robert Schuman, 2004, p. 338.←115 | 116→