Substate Identity-based constitutional claims: Negotiation, Rejection, and Confrontation

This paper discusses constitutional claims proposed by national identities. Constitutional debates over the roles of national identities are traditionally associated with the protection of minority rights, yet there is perhaps a larger group of constitutional demands that is fostered by identity groups (e.g. Scot or the Catalonian) . These identity-based constitutional claims are organized into a constitutional programme by an institution with a democratic mandate such regional government. The programme normally includes ‘a path for constitutional recognition’. So the aim of this presentation is to clarify the distinctive status of identity-based constitutional demands in modern and pluralist constitutional theory by explaining that some of the objections against their recognition are unfounded. I will contend that a modern constitutional system that aspires to create a set of communal alliances between strangers should seek to retrieve rational discourses, not to impose them.

The Right of Secession in International Law Reconsidered

The paper seeks to critically review the right of secession in international law. In several states around the world, various ethnic-nationalities and peoples often demand the right to determine their common political destinies. But these demands are frequently denied or crushed by states in defence of the traditional principle of territorial sovereignty. Given these contrasting interests the paper seeks an innovative way out. It asks two crucial questions: (i) whether there is a right of secession?; and (ii) whether states may be justified to resist secession?

I will argue that the legitimacy of secession should be based on four key pillars, namely: (i) the legal right of self-determination; (ii) the moral right of rectification of grave injustice; (iii) the political right of constitutionally negotiated secession; and (iv) international recognition by states. These basic pillars would serve thus to clarify the ambiguous status of secession in international law.

In the Name of Social Harmony: Ethnic Dominance, Rights Limitations and Pluri-nationalism in South Asia

Several Asian constitutions have provisions allowing States to curtail democratic rights in the name of social harmony. Synthesizing literature on rights restrictions, this paper examines how framing social harmony as a rights restriction links social harmony to security, an accepted limitation on rights, highlighting an antagonization of identity politics and security. Social harmony restrictions empower States to safeguard notions of coexistence convenient to elites, portraying dissent, especially identity-based, as a threat that justifies limiting rights. As social harmony cannot be objectively measured, and it is impossible to know if a State asserts that it exists (or is at risk) in good faith, these restrictions are vulnerable to abuse. Relying on the cases of Nepal, Sri Lanka and Bangladesh, this paper shows how social harmony restrictions can be used to protect the status quo and quell identity movements vital to building and sustaining harmonious, pluri-national democracies.

Implementing a Right of Secession: Constitutional and International Legal Strategies

Assuming one wanted to support a right of secession – hardly the dominant view in law or politics – what would be the most promising strategy? The most common approach is constitutionalization, as recent secession attempts suggest. But this is only half right. The path leads through many small changes, rather than a single, quixotic swerve towards a new legal rule. But precisely because the existing global norm limits the ability to create change within states, we cannot simply abandon the idea of a new norm. Advocates of secession need a point of triangulation outside the state to advance their cause, which can be found in international law. Prospects for change in individual constitutions will be strengthened if we keep a global claim, however implausible now, clearly in sight. This topic is relevant for a simple reason: However disfavored in law and politics, secession is an endemic challenge to the global architecture. It is not going away, and therefore we will need to manage it.

Secession and the Prevalence of Militant Constitutionalism Worldwide

The prevalent approach suggests that constitutions are silent about secession and may even implicitly allow it. But an examination of world constitutions reveals that the overwhelming majority of countries vigorously protect territorial integrity. This article explains how democracies have been able to conceal their fight against secessionists, by creating a large gap between “the law on the books” and “the law as practiced.” In fact, democracies employ the most unconventional constitutional weapons to fight against secession. These include a ban on secessionist political parties from participating at elections and a constitutional eternity clause that makes territorial integrity an eternal value. Countries’ total prohibition on secession may be explained on strategic as well as principled constitutional law considerations. The Canadian landmark “Reference re Secession of Quebec” decision’s precedential value for world constitutionalism must thus be qualified

Is There a Right to Secession?

A right to secede would entail that secession has a protected status. That is, if there is a right to secede, then it is permissible to secede even if secession is unjustified—in the same way that the right to free speech protects speech that is false, harmful, or otherwise unjustified. It is commonly believed that secession is justified when a part of the state is suffering a serious form of abuse. I argue that this common belief is correct. But secession cannot be justified merely because a part of the state wants to secede. In the absence of serious abuses justifying secession, secessionist movements must persuade us that there is a right to secede and that their cause is within its scope. I argue that there is no persuasive case for a moral right to secede, and that it is therefore a good thing that international law and most constitutions do not include one