Morality and Legality of Secession: A Theory of National Self-Determination

ISBN-13: 9783030265885 / Angielski / Twarda / 2019 / 386 str.

Pau Bossacoma Busquets

Recenzje

"A general theory such as the one Bossacoma proposes is nonetheless necessary to shape normative canons to address secessionism within liberal democracies. ... A main concern in Bossacoma's book is how to tame secessionism and prevent secession disputes from degenerating into violent conflict, as has too often happened in the building of new states ..." (Hèctor López Bofill, The American Journal of Comparative Law, February 4, 2022)

"This work offers one of the most updated approaches to the issue of secession, both from a moral and a legal point of view. In a time where we are getting used to short and partial approaches to big topics, Bossacoma delivers a detailed and exhaustive insight to this issue from the two spheres of normative theories. The completeness of his approach allows him not only to present new perspectives on normative accounts of secession, but to build up a challenging, yet plausible, innovative framework for the morality and legality of secession that he labels Justice as multinational fairness." (Jordi Jiménez Guirao, Ramon Llull Journal of Applied Ethics, Issue 12, 2021)

"The essay aims at reflecting upon the multifaced issue of secession and self-determination, starting from the reading of the recent volume Morality and Legality of Secession by Pau Bossacoma Busquets. Having blurry boundaries among academic disciplines, secession is analyzed (both separately and jointly) through different perspectives ... . However, the goal of the book is not only to offer a comprehensive perspective on the matter but also to propose an alternative theory on secession based on a hypothetical multinational contract, building upon Rawlsian contractualism." (Lidia Bonifati, Osservatorio Associazione Italiana dei Costituzionalisti, July 6, 2021)

"In his new book, Pau Bossacoma Busquets combines political theory and philosophy with perspectives from international and constitutional law and a variety of empirical, historical and contemporary case studies. Thereby, he presents a new theoretical framework for discussing the Morality and Legality of Secession (2020) in general and various theoretical, institutional and practical challenges presented by movements for independence in particular." (Anna Meine, Las Torres de Lucca, lastorresdelucca.org, Vol. 10 (18), 2021)

"One of the book's greatest virtues is its comprehensiveness: it attempts to answer all the major moral and legal objections raised against the justification of secession. Besides making a normative proposal, the book also functions as a descriptive balance of the theoretical debate about secession. In this sense, it is also an extremely informative book. ... Bossacoma offers a justification for secession that is not only innovative from a theoretical point of view, but also appropriate for our times in the context of plurinational liberal democracies." (Pau Luque, International Journal of Constitutional Law, December 5, 2020)

Spis treści

1. SECESSION IN POLITICAL PHILOSOPHY

1.1. The concept of secession

1.2. A contract theory of secession

1.2.1. Contractualism and boundaries

1.2.2. A hypothetical multinational contract

1.2.3. Articles and principles of a hypothetical multinational contract

1.2.4. The multinational contract in between other hypothetical contracts

1.2.5. Liberal nationalism as a requisite for secession

1.2.6. The place amongst the theories of secession

1.2.7. The excessive fragmentation objection

1.3. The principle of nationality

1.3.1. Nations as encompassing groups

1.3.2. National and ethnic minorities

1.3.3. A defence of national self-determination

1.3.4. Distributive justice and secession

1.4. Complementary causes to legitimize secession

1.4.1. Colonialism and imperialism

1.4.2. Occupation and domination

1.4.3. Serious and persistent violation of human rights

1.4.4. Economic exploitation and marginalization

1.4.5. The right of minority nations to self-protection

1.4.6. Violation or failure of internal self-determination

1.4.7. Previous statehood and historical rights

1.4.8. Non-violent secessionist movement and excessive State coercion

1.4.9. Normative effects of complementary causes

 

2. SECESSION IN INTERNATIONAL LAW

2.1. Self-determination of peoples

2.1.1. Self-determination and democracy

2.1.2. Self-determination as a legacy of the World Wars

2.1.3. Three types of secession under customary international law

2.1.4. A utopian type of secession to foster perpetual and just peace

2.1.5. Violation or failure of internal self-determination as more realistic types of secession

2.2. Unilateral declarations of independence under international law

2.3. Effectiveness and international recognition

 

3. SECESSION IN CONSTITUTIONAL LAW

3.1. Constitutional right to secede and constitutional reform

3.1.1. Constitutionalizing the right to secede as a type of constitutional reform

3.1.2. Constitutional reform and secession

3.2. The principle of democracy and secession

3.3. Representative democracy and secession

3.3.1. Importance and dangers of the principle of representation

3.3.2. Declaration towards independence

3.4. Referendum democracy and secession

3.4.1. Significance and problems of the referendum

3.4.2. The clarity of the question

3.4.3. The clarity of the majority

3.4.4. The individual right to vote on secession

3.4.5. A secession strategy in adverse liberal-democratic contexts

3.5. Consensual secession

3.6. Internal self-determination

3.6.1. Illegitimacy of unilateral internal self-determination

3.6.2. Institutional disobedience and unilateral self-determination

3.6.3. Internal secession as the creation of new States within a federation

3.7. Unilateral secession

3.7.1. The awakening of a constituent people

3.7.2. The emergence of a new legal order

3.7.3. Unilateral declaration of independence beyond theory

 

Epilogue

Bibliography

O autorze

Pau Bossacoma Busquets is Lecturer in Public Law at Pompeu Fabra University, Spain, and legal advisor of the Catalan Government. He is a member of the UPF Political Theory Research Group, the Evolution of Institutions Observatory and the Edinburgh Centre for Constitutional Law. He has authored several academic books, chapters and papers on constitutionalism, democracy, citizenship, nationalism, self-determination, sovereignty and territorial autonomy.

Blurb

This book explores secession from three normative disciplines: political philosophy, international law and constitutional law. The author first develops a moral theory of secession based on a hypothetical multinational contract. Under this contract theory, injustices do not determine the existence of a right to secede, but the requirements to exercise it. The book’s second part then argues that international law is more inclined to accept and advance a remedial right approach to secession. Therefore, justice as multinational fairness is to be fully institutionalized under the constitutional law of liberal democracies. The final part proposes constitutionalizing a qualified right to secede with the aim of fostering recognition and accommodation of national pluralism as well as cooperation and compromise between majority and minority nations.

Pau Bossacoma Busquets is Lecturer in Public Law at Pompeu Fabra University, Spain, and legal advisor of the Catalan Government. He is a member of the UPF Political Theory Research Group, the Evolution of Institutions Observatory and the Edinburgh Centre for Constitutional Law. He has authored several academic books, chapters and papers on constitutionalism, democracy, citizenship, nationalism, self-determination, sovereignty and territorial autonomy.