In this paper I argue that none of the foundational justifications of territorial sovereignty are successful. To the extent that there are grounds for affirming the practice of territorial sovereignty, they are radically non-ideal, having to do with the moral and other costs of dismantling a system that presently structures so much of our lives, even though its historical origins are contingent, and its normative foundations doubtful.
We intuitively correlate the geographic dimension of constitutions with particular states, presenting constitutions as the legal instruments of geographically defined nation-states. This correlation and presentation might suggest that the geographic dimension of a constitution is a function of its state. In this paper, I explore a different possibility: that constitutions and laws play a significant role in constructing their own geographic dimension. I first show how authority can have an intrinsic or extrinsic geographical dimension. There can be divergent political authorities in the same geographic area. States are political actors that exercise unitary political control in a defined geographic area. This account links concepts of state, sovereignty, and territory. Sovereignty can be dispersed across a number of institutions, provided that they can act in a coherent way: constitutions and legal systems assist in that task.
In contrast to the prevailing approach, my theoretical and empirical work on “Secession and the Prevalence of Both Militant Democracy and Eternity Clauses Worldwide” published in the Cardozo Law Review in 2018 suggests that the overwhelming majority of world constitutions, including the constitutions of the overwhelming majority of democratic and semi-democratic states, prohibit secession in explicit but indirect manners. In that work, I analyze the different constitutional treatments of secession existing in 192 constitutions of states that are members of the UN and the empirical findings regarding their prevalence. In this paper, I argue that as long as states need the combination of citizens and territory to exist, both international and constitutional law will most likely continue to ban secession outside decolonization or foreign occupation contexts. The paper is part of a collection of essays on STRATEGIES OF SECESSION AND COUNTER-SECESSION (Griffiths & Muro eds, 2020).
Sovereign States have always been reluctant to recognize wide interpretations of the right to the self-determination: they see in them a dangerous thread against their own political unity. The present paper argues that the recognition of the right to external self-determination encompasses other cases beyond the decolonization processes. It explores the path taken by some prominent international law scholars such as Antonio Cassese according to whom the right to external self-determination might emerge once the accommodation of a particular national people within a larger sovereign state is frustrated. The paper explores to what extent such doctrine might be applicable to the Catalans' present situation considering both that the holding of a referendum on secession is severely repressed by the Spanish constitutional system and that, nonetheless, the celebration of a referendum on Catalan’s independence is supported by a large majority of the Catalan citizenry.