Secession is a more specific and technical term than independence, which is more often used in everyday language. The verb secede, which can be broken down into the Latin words se and cedere, means to leave or to separate from a place or group.1 In this book, secession is defined as a separation of part of the territory and population of a State with attributes of sovereignty in order to create another State with similar attributes of sovereignty.2
Secession can be one way to exercise the right to external self-determination. Association with or integration into another fully sovereign State can be considered other ways of external self-determination.3 Although eminent authors such as Allen Buchanan included the separation of a territory in order to associate or integrate with another pre-existing sovereign State within the concept of secession, this book regards secession as separation to create a new State.4 It remains to be assessed whether it is reasonable to extend the theory of secession defended here to association or integration with a pre-existing State.5 As Aleksandar PavkoviÄ and Peter Radan specify, transfer of territory and population from one State to another (usually a neighbouring country) is not secession strictly speaking, but rather redemption (liberation). The internal movement seeking association or integration with the other State would then be redentist, whereas a State claiming part of the population and territory of an adjacent State would be irredentist.6
At this point, a distinction should be drawn between external secession and internal secession. While the former implies the creation of a new sovereign State independent from the parent State withdrawn from, the latter involves the creation of a new member State within the same federation. Supporters of the notion of internal secession argue that if, following theories of federalism, sovereignty can be shared between the Federation and its States, separation of a territory from a federated State can be deemed as internal secession.7 Even though internal secession fits this bookās definition of secession, secession will generally refer to external secession. That said, the political and legal potential of including internal secession in the proposed concept of secession should be stressed: if, for instance, the EU is considered or eventually becomes a federation, the independence of Catalonia from Spain could be deemed as a case of internal secession.8
Following a rather general opinion among academics, the concept of secession proposed covers both peaceful and violent and both unilateral and consensual secessions.9 In contrast, James Crawford defines secession restrictively as āthe creation of a State by the use or threat of force without the consent of the former sovereignā.10 Such a restrictive definition should be rejected because it confuses means and ends when discussing this issue.11 In contrast, it is sounder if the same term covers both the desirable means (peace, negotiation and agreement among the relevant parties) and the undesirable ones (lack of consent and use or threat of force). A more practical argument to support this broader definition is that, as time goes by, elements of unilateralism and use of force tend to combine with elements of negotiation, agreement and subsequent recognition by the parent State.
The concept of secession employed here is restricted, generally, to secession of the minority.12 In principle, the theory of secession supported in this book does not include secession of the majority (defining majority both in geographic and demographic terms) because often this could be an expulsion (and so an exclusion). Following the same line, it should be considered an expulsion when the part of the State that questions its unity includes the central government and bases its legal identity on the existing State.13 Notwithstanding the difficulties to distinguish secession from expulsion in the world of facts, in the normative realm a right to secede ought to be distinguished from a right to expel.14 Justice as multinational fairness especially upholds a moral right to secede for minority nations, whereas other theories of secession do recognize a right to secede of the majority.15
Secession of the periphery is the typical case exercised by a national minority concentrated geographically on the edge of the Stateās territorial borders. Conversely, secession of the centre (or āhole-of-a-donut secessionā, in Buchananās terms) is a rare case, involving secession of a territory surrounded by the remainder of the parent State.16 Since this kind of secession generally opposes the Principle of territoriality defended later, secession of the centre should be excluded prima facie from this bookās theory of secession.17 If such secession happened to arise, an international guarantee of a sort of right of passage through the remaining territory of the parent State would be necessary in order to safeguard land contact between the territory of the newly independent State and the rest of the world. To a certain extent, an analogy could be drawn with the cases of enclaves. Both enclaves and secessions of the centre are exceptional cases to be considered cautiously, case by case.
Secession involves splitting away from an existing political union.18 Secession from a state of anarchy is not conceivable. Secession challenges the sovereignty (or certain attributes of sovereignty) of an existing State. The pre-existing State might disappear as a result of a secession, but this does not mean that, at the time of secession, it was not an existing political union. At this juncture, secession must be distinguished from dissolution. In principle, when one or more secessions happen, the parent State remains as the continuator State under international law. By contrast, in the event of dissolution, the parent State would no longer exist and all the new States would become the successors of the predecessor State.
Yet there are overlaps between dissolution and secession. Dissolution is often caused by previous secessions or attempts at secession. As an example, it is open to debate whether the case of Yugoslavia was a dissolution or a dismemberment caused by a chain of secessions. The distinction between whether there is a continuator State or whether all the new States become successor States is significant in international law (e.g. for the purpose of continuity of international treaties) but should not overly concern Justice as multinational fairness.19 In this book, the term dismemberment (as a broad concept) will therefore be used when parallel or successive secessions occur within the same parent State, in order to include both cases where a continuator State is recognized (USSRāRussian Federation) and those where dissolution occurs and all the new States are considered successor States (Yugoslav Federation).20
The concept of secession defended here is groupal, since it excludes individual secession. Anarchist or libertarian thinkers have explored the idea of secession of a single individual, as distinct from group secession. Secession seeks to end sovereignty of a State over part of its territory and population. By analogy, āindependentsā seek to end sovereignty of a State over an individual (without being forced to emigrate).21 The concept of secession should not include individual secession for several reasons. One stems from the close connection between the concept of secession and the concept of State. The commonly accepted definition of State brings together the essential elements of population, territory and independent and effective government. A single person could not be considered a population and would hardly meet other basic requisites of statehood.22
Since a society cannot be created with a single individual, neither is a State with a single individual possible. Freedom of association shows that liberalism is not per se incompatible with the recognition of fundamental rights the exercise of which is not strictly individual. In this regard, the right to secede might be conceived as an individual right exercised collectively (similarly to freedom of association) or as a group right more tied to specific groups. This book will defend a right to secede ideally assigned to national communities. Yet, in nonideal contexts where the parent State has perpetrated or perpetrates injustices against a specific sub-State territory, these could extend the right to secede beyond nations.
In s...