From a legal-philosophical perspective, this paper will start from the contradictory nature of secession which at the same time presents both a revolutionary and conservative character explaining many of the problematic interactions between democracy and secession and between law and secession. To avoid simply admitting that law cannot deal with secessionist crises, the paper will pose the question of the peculiar legality of secession, which results in residing on the border between international and domestic legal spheres. Finally, the paper will critically explore the principal statements of the democratic theories of secession since the respect for democratic principles is necessary for the international community to accommodate the secessionist process.
Democratic theories of secession argue that a democratic process makes secession legitimate. The procedure together with the will of a majority legitimate secession and they suffice for the constitution of a new independent sovereign subject. I raise four criticisms against this conception. Firstly, lacking a “just cause” justification, this democratic secession relies on the assumption that democracy may legitimately achieve any end whatsoever. Secondly, “democratic theory” does not resolve the central problem of theories of democratic self-determination: the delimitation of the demos. Thirdly, by no resolving the problem of delimitation, democratic secession creates “symmetry problem”: any group within the seceding territory must also be able to secede. Finally, the democratic theory does not resolve the reversibility issue: whilst a majority may take a secession decision, a similar majority may not retract the original decision.
The present paper aims at focusing precisely on the interrelationship between Brexit and secession. First, it analyses Art 50 TEU as a constitutional provision that allows for secession. Second, it explains how Brexit could trigger the dissolution of the United Kingdom of Great Britain and Northern Ireland and the reintegration of Scotland and Northern Ireland to the EU. Third, it discusses why a solution to the 'Irish border’ conundrum that would entail a much closer relationship of this region with the EU than the rest of the UK should be seen as a pragmatic solution that protects the fragile balance struck by the Good Friday Agreement rather than as an annexation of Northern Ireland to the EU.
Starting out from considering the recent development of Brexit as secessionist movement, I will investigate into the meaning of the right of withdrawal within a non-state federal community like the European Union. After analysing the difficulties raised in the discussion of art. 50 TEU about the right of withdrawal interpreted as constitutional right for the European Union, I will show why this right might have the positive function of enhancing the political plurality and of conceiving of a structurally plural political unity. To acquire this function, the withdrawal right requires to be decoupled from the concept of sovereignty and to be considered in its relation to the purposes which justify the creation of the federal union.