Accessible Requires Authentication Published by De Gruyter September 13, 2019

Indivisibility and Secession Clauses in Current Constitutions and the Prevalence of Secessionist Movements – Empirical Paper Series on Secession and Constitutionalism, Part 1 of 2

Anthony Beauséjour
From the journal ICL Journal

Abstract

Split into two parts, the Empirical Paper Series on Secession and Constitutionalism explores the relationship between constitutionalism and secession. While the second part of the article will examine the constitutional arrangement towards secession that prevailed in the states that had a region secede since 1900, this first part discusses the relationship between indivisibility and secession clauses in current constitutions and the prevalence of secessionist movements worldwide.

Virtually all consequentialist claims contained in existing scholarship concerning the relationship between constitutionalism and secession fall within either one of two doctrinal creeds. Whereas the Indivisibilist School asserts that indivisibility clauses best prevent secessionism and that secession clauses necessarily prompt this phenomenon, the Secessionist School maintains that prohibiting secession is counter-effective and that recognising it as a right can help defuse secessionism by avoiding confrontational tactics.

These claims are assessed on the basis on the Cohesion Dataset, the first-ever census of all constitutional arrangements regarding secession currently operative throughout the world. Contrarily to what existing doctrinal claims would suggest, the relationship between these various constitutional arrangements and secessionism is not linear, but rather U-shaped: both indivisibility and secession clauses are significantly associated with more secessionist activity than average. It is in fact constitutions where secession is neither permitted nor prohibited that are correlated with the least secessionist activity.

Acknowledgements

I am deeply indebted to Professor Peter Cane of the University of Cambridge for his insightful guidance. I am also grateful to professors Jean-François Gaudreault-DesBiens and Karim Benyekhlef as well as to the Faculty of Law of the Université de Montréal and the Centre de recherche en droit public for their unwavering trust and generous financial support.

A Appendix to Section 3.2 – Cohesion Index

Part 1 – Distribution of points for indivisibility clauses

Types of indivisibility clausesPoints
ExplicitDeclaratory15
ProhibitiveSubnational units15
Central state15
Eternity clause15
ImplicitStrongProhibition against referendums10
Requirement for a national referendum10
Restrictions on rights and freedomsGeneral5
Freedom of association2
Political rights2
Freedom of speech, opinion and press2
Cultural and minority rights2
Legal rights2
General criminal offences5
WeakRequirement for a qualified legislative majority5
State of emergency3
Roles and obligationsGeneral3
State1
Head of state1
Executive1
Legislature1
Judiciary1
Military1
Subnational units1
Removal from officeState2
Head of state1
Executive1
Legislature1
Judiciary1
Military1
Subnational units1
Specific criminal offencesState2
Head of state1
Executive1
Legislature1
Judiciary1
Military1

B Part 2 – Distribution of points for secession clauses

Secession procedureCompetent authority to call the referendum and required majority to do soRequired referendum majorityApproval of secession
Subnational unitCentral executive1/2 majority2/3 or absolute majorityNo central approval requiredCentral approval required
ExecutiveLegislature
1/2 majority2/3 majority
Points20 (or)15 (or)10 (or)5+20 (or)10+20 (or)10
Published Online: 2019-09-13
Published in Print: 2019-09-25

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