Building Bridges: A Janus-Faced Secession

Abstract

From the constitutional perspective, and much to the dismay of a romantic glorification of freedom, secession is also a paradox in the form of a serious threat to the constitutional order. Seen from the outside, secession poses several other challenges, since accepting such a precedent legitimizes analogous impulses of deeply ingrained emancipatory revindications. Hence, the cluster-right of peoples to self-determination has been developed to include several dimensions that are now solidly developed, namely the rights of minorities and indigenous peoples, and the open debate on the alleged “right” to democracy. Notwithstanding such wideness, self-determination does not grant any primary right of secession. Also, for this reason, the law distinguishes the right to independence of colonial peoples from the claims of unilateral territorial separation. “Remedial secession”, more than a unilateral secession, is a territorial separation from a state in cases in which several distinct legitimacies can be asserted, including the one that responds to threats to international peace and security. We argue that the so-called “remedial secession” can be better qualified as a multidimensional process, in which human rights, self-determination and threats to international peace are intertwined. From this perspective, the result of territorial separation, much more than a remedy, describes an international consensus. The Portuguese Constitution, in line with most constitutional texts, is silent on secession. In fact, it values the more traditional concept of the right of self-determination and enshrines unequivocal references to principles and values that conflict, head on, with any secessionist pretension.

Keywords: secessionism; self-determination; minority rights; indigenous peoples; colonialism; international peace; secessionist disputes; primary secession; remedial secession; secession by mutual agreement; multidimensional secessional process.