Secession and comparative constitutionalism

Abstract

This article reviews the link between secession and constitutionalism among advanced constitutional democracies through the analysis of the debate between the classic paradigm, identified with US constitutionalism, and the so called new paradigm, identified with Canadian constitutionalism. While the classic approach is represented by a highly restrictive interpretation that prohibits secession (including a referendum on secession), the new paradigm attempts to accommodate pro-independence demands if there is a clear majority asking for it. Today, different legal orders from European democratic States have been forced to respond to this type of demands. British constitutionalism, for instance, when dealing with Scottish demands for independence, has followed the new paradigm, allowing for the secession referendum to take place in a geographically located part of the country, although with certain supervision by the central government and excluding a unilateral right to secede or even to organize an independence referendum. In other countries, however, the position of the central government and the Constitutional Courts have been highly restrictive. In this sense, Spain is undoubtedly a relevant example, yet it is not an exceptional case. In effect, recent decisions of the Italian and German Constitutional Courts confirm this interpretation, although with nuanced differences. In all these cases, the Courts have noted that sovereignty belongs to the (national) people as a whole and that a segment of such people cannot make fundamental choices when they do affect the whole of the citizenship. These common positions show that the new paradigm has not replaced the classic approach, but that both are equally valid for advanced democracies. Furthermore, this article also attempts to underline that despite the differences between both approaches to secession (classic and new paradigm), there are some common traits: respect for the Rule of Law and key role for the central government, which excludes the possibility of any type of unilateral secession. Summary: 1. Introduction. 1.1 Secession and constitutionalism. 1.2 Should Constitutions include secession clauses? 2. The classic and new paradigm: United States and Canada. 2.1 United States. 2.1.a) Secesion through revolution. 2.1.b) Secession through consensus. 2.2 Canada. 2.2.a) Opinion of the Canadian Supreme Court Reference re Secession of Quebec. 3. Responses to pro-independence movements within the Western European context. 3.1 United Kingdom. 3.1.a) Scotland. 3.1.b) Northern Ireland. 3.2 Italy and Germany. 4. Concluding remarks. 5. References.

Keywords

• secesión
• referéndum
• constitucionalismo
• democracia
• estado de derecho