Secessionism and Separatism Monthly Series: “Negotiated and Consensual Secession” by Michael Keating

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H-Nationalism is proud to publish here the third post of its “Secessionism and Separatism Monthly Series”, which looks at issues of fragmentation, sovereignty, and self-determination in a multi-disciplinary perspective. Today’s contribution, by Professor Michael Keating (University of Aberdeen), deals with peaceful separatism and ways of achieving consensual secession. Please feel free to participate in the discussion by commenting on the piece.

 

Negotiated and Consensual Secession

Secession refers to the exit of a territory from a state to make an independent state of its own. Negotiated and consensual secession implies agreement on the process and acceptance of the outcome by both the state and the secessionist movement. This is extraordinarily rare. We lack a normative framework for assessing independence claims beyond the classic remedial and decolonization theories. There is little relevant international law. International and European practice is inconsistent. States themselves rarely have the necessary provisions in their constitutions. Cases like Scotland or Montenegro are so unusual that it is difficult to build anything broader upon them.

To gain analytical purchase on this, we need to reframe the question by redefining both the subject and the object of self-determination and rethinking the relationship between political sovereignty and territory. This does not yield a definitive outcome but allows us to frame the question as one amenable to political solutions. State and international practice, however, have not caught up.

The principle of self-determination is, at first sight, unobjectionable, but, as Ivor Jennings put it, it looks meaningless if we cannot define who are the relevant people. Saying that nations have the right just begs the question of what is a nation. The term ‘nation’ in any case carries in itself a normative charge that implies the right to statehood. So political movements shifting from autonomy to self-determination will often adopt the vocabulary of nation, as in the Catalan movement of the early twentieth century (originally Liga Regionalista) or the Lega Nord’s shift from northern regionalism to the nation of Padania in the 1990s. Ethnicity is so slippery and charged that most movements have abandoned it altogether, although Alesina and Spoloare (2003) seem to think that there are ethnically homogeneous regions in which people agree with each other on public policy issues. The ‘right to be different’ is almost as unhelpful since it implies that the justification lies in the difference when many contemporary nationalist movements stress their adherence to universal values as their ethical basis. Stéphane Dion (1992) called this ‘de Tocequeville’s paradox’, political divergence with cultural convergence.

Modern sociological approaches to the nation are largely in agreement that it is socially and politically constructed and, to various degrees, malleable. It seems difficult to base a right upon such a flimsy ontological foundation. Yet the matter is not beyond empirical investigation. Political communities (to use a less-charged but not entirely neutral term) cannot be defined objectively, but nor are they purely subjective. They represent, rather, intersubjective understandings, which are never completely uncontested, even in the most stable states. It is this feature that underlies the reasoning of the Supreme Court of Canada in the Quebec secession reference, that a clearly-expressed desire on the part of any province, to separate, would oblige Canada to respond and negotiate. This takes the issue out of vexed questions of nationality towards democracy. If this sounds too vague, let us remember that existing states, now that they are called on to legitimate their existence (faced with challenges from above and below) resort to exactly the same arguments.

As concerns the object of self-determination, this is classically seen as an independent state, but we no longer really know what this means. Nationalist movements seeking independence by peaceful and negotiated means almost invariably provide for continued association with the rest of the state. Increasingly, they support transnational institutions (notably in the European Union) as a way of overcoming externalities and finding security in the world. So Quebec nationalists repeatedly come back to formulas like sovereignty-association and sovereignty-partnership. The Yes side in the Scottish referendum stressed the European Union framework and, like the Quebec nationalists in 1980 and 1995, proposed a currency union with the old state. Flemish nationalists talk of independence as a long-term vision but in the meantime play with confederal ideas. The shift of mainstream Catalan nationalism from autonomy to independence in the last few years is significant, but the vision is of a strong Europe and continued links with Spain.

The third key element is territory, a defining feature of statehood in the traditional sense. States have clear territorial borders, with sovereignty within them and do not share space with anybody. This is one of the classic objections to self-determination by consensus, since nations, however defined, rarely correspond with territorial demarcations. Yet new understandings of territory see it, too, as socially constructed in the sense that its meaning is not merely topological but sociological and political (Keating, 2013). Territory has different meanings, including the symbolic, the historical, the political and the institutional and it is not necessary that these always coincide. The geographical expression of the Basque Country varies hugely, depending on which criteria are used but this does not mean that the concept is meaningless, just that it is complex and variegated. Catalonia may be defined by the present autonomous community but there is a wider concept of the Països Catalans. Scotland is highly exceptional here, as its boundaries have been accepted for the last five hundred years with little dispute.

These ideas present principles for rethinking the issue of self-determination. They do not provide a grid or a list of tick-boxes, which each case must satisfy; the study of nationalism has been all too prone to the generation of taxonomies and generalizations. Rather they provide an approach, permitting a cumulative procedure for assessing cases according to conceptions of subject, object and territory.

For some twenty years, I have been developing ideas like this, along with academic colleagues, seeking a ‘post-sovereignty’ approach to political order that would permit self-determination cases to be negotiated like other political issues. The ideas are now out there and survey evidence suggests that citizens do not make rigid distinctions between secession and autonomy but rather see these as a spectrum. At the political level, however, there is less progress and states and international bodies are thirled to traditional ideas about states, territory and sovereignty, even as these lose their practical meaning.

Catalonia is currently caught in a political conflict with Spain concerning secession and independence. Catalan nationalists insist on an inherent ‘right to decide’, while Spanish parties declare that the Spanish nation is indissoluble and that the Constitution prohibits secession. Earlier efforts to find a compromise were bedevilled by semantic arguments about whether Catalonia could call itself a state. The issue was not, at that time, the question of secession.

Scotland looks like a more promising case. The vocabulary of nation is largely uncontested and can be accommodated within a certain concept of union. The UK Government did agree to a referendum on independence and to respect the outcome. This does not reflect an inherent British moderation or pragmatism, as often thought. Just over one hundred years ago, on the eve of the First World War, the Conservative Party was prepared to countenance mutiny and armed resistance to Home Rule (not even independence) for Ireland. The British political class do seem to have learned something; there is also a sense in which Scotland is less essential to the idea of Britain than Catalonia is to Spain. Yet even then, the UK unionists resisted the option of more autonomy on the ballot paper, insisting on union or independence. The nationalists, while toying with a second question for tactical reasons, were not too keen either.

The international community, too, often sees statehood as the answer to difficult questions about nationality and self-determination. While dismissing general ideas about the legitimacy of secession, they will accept it as a fact. So in the case of Kosovo, where an existing autonomy had been violated, most states accepted secession rather than a restoration of the autonomous order, since the latter is not accepted as an object of international law.

Why does secession in the conventional sense continue to have such a hold, when in practice it is hard to define? Part of the answer lies in the ontological question with which I started. Nationalist movements are at pains to demonstrate that the nation exists and has a will and the clearest way to prove this is through erecting it into a state, the highest category of polity in the international order, even if this is not necessarily the most effective way of wielding power and influence since small states may be less important than big regions.

Nationalism is still bound up with a teleology about its ultimate expression so that anything less than statehood leaves a sense of incompleteness. The expression ‘stateless nation’, for example, suggests that there is something missing or yet to come. Statehood puts the seceding nation on the same moral plane as the state from which it secedes, which mere autonomy cannot do. The consequence is the reinforcement of nationalism as a zero-sum game, not amenable to consensus or the compromises of normal politics. Such absolutes do not necessarily lead to violence but they may do so when there is no political outlet. Violence, in turn, reinforces the reality of the nation, by creating a social and political boundary and defining the political community in absolute terms.

Secessions can be peaceful and consensual. Had Scotland voted for independence in 2014, there is no reason to think that violence would have resulted or that the United Kingdom would have resisted in other ways, but this is an exceptional case. The definition and boundaries of the nation were not in question, not because Scotland is ‘ethnically homogeneous’ but because of the way it had been constructed and reconstructed as a political community over the centuries. British elite and mass opinion did not see it as an existential threat to their own concept of nationality. In other cases, the effort to align political community, identity, institutions and territory within hard boundaries creates a zero-sum form of politics not amenable to the compromises of the political process. Consensual secession, where this is understood in the traditional sense, is a difficult task indeed.

 

References

Alesina, Alberto and Enrico Spolaore (2003), The Size of Nations, Cambridge, Mass.: MIT Press.

Dion, Stéphane (1991), “Le nationalisme dans la convergence culturelle. Le Québec contemporain et le paradoxe de Tocqueville”, in R. Hudon and R. Pelletier (eds), L’engagement intellectuel. Mélanges en l’honneur de Léon Dion  Sainte-Foy: Presses de l’Université de Laval.

Keating, Michael (2013a), Rescaling the European State: The Making of Territory and the Rise of the Meso, Oxford: Oxford University Press.

 

Faced with the paucity of consensual secessions, how could one disagree with the conclusion of Michael Keating's thoughtful essay: that consensual secession is a difficult task indeed? And I do sympathize with his efforts to find a way "that would permit self-determination cases to be negotiated like other political issues". Here I would like to comment on the few aspects of 'traditional' secessions, which, Michael notes, make them different from other political issues. First, the power exclusion. A traditional secession - such as the one attempted in Scotland - aims to exclude the existing political class - that of the UK - from governing the seceded territory for ever ("in eternity"). Secession rules out the return to power of the current ruling party or ruling class: and in this it sharply differs from standard party competition for power in a competitive multi-party electoral system (commonly called 'democracy'). Second, the exclusion from power is explained/justified by reference to national identity. As Michael suggests, the current political class (described perhaps as the current parties competing for power in the 'host' state) - is to be excluded from power, at least in the eyes of some committed secessionists, because it lacks the required identity entitlement to exercise power over the territory: the current political class (as a whole) does not possess the required identity to represent the secessionist nation (although some of its members may happen, accidentally, to possess this identity, they do not represent the nation). Third, sovereign rule over a territory is essentially linked to a particular identity of the political class or leaders exercising it.

No other political issue, in domestic politics of democratic states, combines these three aspects, each of which is presented as non-negotiable. How do you negotiate secession when some of its important (perhaps the most important) aspects are non-negotiable? It is now understandable why academics and (a few) politicians would like to either remove or at least dilute and make negotiable some or all of these three aspects. If secession is seen as a movement towards dilution and dispersion of state/sovereign power and not as exclusion from and/or imposition of a national monopoly on sovereign power, one can negotiate or agree on dispersion of state power without granting any group or class a monopoly on it. The process of negotiation on this issue may even bring into doubt the 'eternity' of any such negotiated dispersion of power: if some powers at some point are moved 'upwards' to inter-state regions, the same powers may be further fragmented in the future and some of its 'fragments' returned, 'downwards' to sub-state regions. Unlike 'traditional' secession, such dispersal of power makes no claim to irreversibility.

And yet there seems to be a growing number of mass secessionist movements who seek a 'traditional' secession by peaceful means - which include popular referenda and negotiation. The 'smoothest' consensual secession in the past were those in which the host state political class (or the ruling elite) made no identity claims on the secessionist territory: neither the Swedish king and politicians in 1905 nor the British monarch and politicians in 2014 made historical identity claims to Norway and Scotland respectively as 'their' domains. In both cases, even if excluded 'for ever' from power over these two territories, their historical identity claim to rule over the remaining states would be (or was) left undisturbed. If the Spanish political class is excluded from power over Catalunia and the Basque country, it may be then excluded from some other 'communities' of Spain - and if this happens, would the remaining state over which they would rule be 'The Kingdom of Spain' or even simply 'Spain' ? Would the post-secessionist remnant of the state 'match' the pre-secessionist identity of its political class as well as its remaining population? These are speculative questions but even if speculative they do not admit to simple or easy answers.

It seems that in order to make 'traditional' secession a political issue like any other, one would have to loosen the grip of historical identity claims over territory. In other words, one would need to make the question of who rules over a territory independent from the national identity of its political class. The grip appears to have been loosened in those cases in which the current political class in the 'host' state does not base its claim to rule the (potentially) secessionist territory on its historical identity. Of course, this is only one kind of identity narrative deployed in a secessionist context: the other one is the secessionist narrative which, invariably, at least in part bases its claim to self-determination i.e. secession on the identity of its population and its historical link to the territory. For secessionists to abandon their identity narrative is to abandon not only an important aspect of their ideological legitimization but also an essential mobilizational tool. A secessionist movement has to address a group distinct from the rest of the population in the 'host' state, even if a large number of the group's members have dual or fluid identity. Is it at present possible to conceive of an independence movement whose only or primary target population would be defined as the Spanish who are the citizens of Catalonia or as the British who are the citizens of Scotland? (Note 'at present' here: I am not denying that such independence movements would be conceivable some time in the future).

Perhaps what I am saying is rather obvious and trivial: for a secession to become a political issue like any other, it has to lose those aspects which make it a non-negotiable issue, such as the above historical identity claims over territory. And that may be not only difficult but perhaps, at present, impossible because it may require secessionists movements to abandon one of their principal mobilization tools.

As usual, Michael Keating and Aleksandar Pavković give us food for thought and we must thank them very much for that. Here, I would just like to add a comment on the idea of post-sovereignty suggested by Professor Keating. The main question is: are we really living in a post-sovereign world? If we think of sovereignty as an exercise of absolute and undivided authority over a specific territory (and I mean authority here as a synonym of power), the answer would probably be yes. The increasing scale of economic, social and political interdependence experienced in most of the world since at least the 1970s, along with processes of regional political integration, would point to a transformation of such authority towards a less absolute form. The idea of ‘shared sovereignty’ is usually cited as the main feature of this post-sovereign world. However, it is curious to note that, as sovereignty has supposedly become more ‘fluid’, nationalist parties, especially in Western Europe, have increasingly borrowed from the language of sovereignty. Most parties, both autonomist and secessionist, have been very careful in recent years to talk more about sovereignty than independence. In such a context, sovereignty is often defined as a ‘right to decide’ about a community’s own destiny—without necessarily clarifying whether the specific choice should be an independent state or something else. This is also how Keating himself suggests defining sovereignty in his Plurinational Democracy, that is, as a right of self-determination. But does this really coincide with a post-sovereign world? Or does it rather entail a normative shift from the state to the nation as the rightful holder of sovereignty (from state to popular sovereignty)? And, if we define sovereignty as a right of self-determination, can we really say that this is ‘shared’? My answer would be that the way in which the power descending from sovereignty is exercised by the state has changed, while sovereignty itself has not. If we really want to move to a post-sovereign order, the concept of shared-sovereignty is not very useful and we should devise new formulations to help us defining a world without a clear attribution of ultimate authority to a specific collective (or individual) subject. Let me illustrate these points.

If we define sovereignty as a right of self-determination, how would such a right be shared? We can imagine that procedures determining how fundamental decisions concerning the future of a community should be taken would be negotiated with other communities inhabiting the same state. The same would hold for some post-decision arrangements, which might entail costs or benefits according to the specific choice. But, once a community is recognised as holding a right of self-determination and demands to exercise it, the question has to be asked and the full range options has to be available, otherwise the central authority would lose legitimacy. Let’s imagine for instance a scenario in which a substantial share of the population of a specific community calls for a right to decide about its future in the form of an independence referendum and the central government agrees but limit the available options to status quo and devolution, thus ruling out independence, in the name of shared sovereignty: would this bargain be considered legitimate? I doubt it and nationalist movements in the relevant community will most likely use the language of sovereignty to request the inclusion of the independence option, regardless of whether they will eventually vote for it or not. 

Accordingly, I suggest thinking of sovereignty as an idea about the location of legitimate authority over fundamental decisions concerning the future of a specific community (or territory in the socially constructed sense mentioned by Keating). This, allows us to distinguish between sovereignty and power. Power is omnipresent and pervasive. It can be diffused, delegated, shared and divided. Sovereignty is elusive. We deal with it only in moments of crisis and change; it cannot really be divided because it establishes who has the right to temporarily share, delegate and devolve power over a territory, as well as to take it back or forfeit it altogether (in which case sovereignty would move somewhere else). To make an example, in today’s EU power is constantly devolved, shared and divided, but sovereignty is ‘quite’ safely in the hands of the member states, because they are largely recognised as the rightful holders of the authority to decide about major issues concerning their existence and to get back the powers that they have devolved, if they so wish (regardless of the fact that this might be very costly). But, sovereignty can be contested and, in some contexts, it can be very hard to identify where this concretely lies (and by concretely I mean in its practical consequences over the actual exercise of power).

There is large evidence, at least in Western Europe, that stateless nationalist parties have adopted a gradualist view of independence and self-determination, as well as shown a solid commitment to peaceful and democratic means to achieve them. Whether this is because they adhere to a post-sovereign conception of sovereignty, I personally doubt it: in the domestic arena, they demand to be recognised as a distinct political community; in the international one (for those who do want an independent state) they ask for the same sovereignty that most other states enjoy (although in the current interdependent world this might mean that they will be better off sharing more power than it used to be the standard some decades ago).

Emmanuel Dalle Mulle's distinction between sovereignty as the right to exercise (supreme) power and political power is very useful for the discussion of negotiated secession. 'Traditional' secessionists movements seek to gain sovereignty in order to be able to exclude the exercise of power by the host state and its ruling class over their territory (as I pointed out earlier). And if we define sovereignty as a right to self-determination, the 'self' becomes as elusive as sovereignty is. But in a secessionist context this may not present a practical obstacle: for secessionist movements 'the self' excludes the population and its ruling class outside the territory they claim. For the purposes of exclusion, a 'self' of this kind can do the job quite well.

The question that I find more puzzling is how to decide who is the holder of the right to self-determination and who is to do the deciding. Secessionists usually have seemingly clear-cut answers to this: they would, wouldn't they. Using the terminology of rights suggests or perhaps presupposes a normative framework which provides a few universal rules for the allocation of these rights and a decision-procedure (hence some kind of authority) for their allocation. For the purposes of 'traditional' secession, that is, for the creation of new states, I can see no appropriate normative framework (perhaps as yet) nor a decision-procedure in place. This gives rise to the question of why use the terminology of rights at all - except perhaps as an expression of a desire and hope that such a normative framework will be found.

I publish below Michael Keating's reply to the comments above as well as to the latest post of our Secessionism and Separatism Monthly Series written by Brian Girvin on the topic of "Democracy, Separatism and Secession". From H-Nationalism, many thanks to him for sharing with us his thought-provoking ideas, as well as to Aleksandar Pavković and Brian Girvin for their excellent contributions.

 

My contribution to this series sought to reframe the question about whether nations have a right to their own state in their own territory. That question is unanswerable. Sasa Pavkovic is right to question why ‘nations’ should have a special right to self-determination. Instead, I present self-determination claims as both ontological (the group exists) and moral (it has a right to self-determination). Asking whether it really is a nation is futile, since self-designation as a nation is part of the claim, not a matter of empirical fact. It is made because since the late nineteenth century, the doctrine of national self-determination is widely recognized. There is no objective way of defining a nation (a normatively charged term) but the question of how a nation is constructed and what the resonance of this is in the population can be empirically investigated. As social scientists, we must ask this question of both sides in the argument (the state and the minority nationalists).

This leads to my second argument , which was that the present political order privileges existing states, although we know that, historically, few of them were founded on free consent. Their foundations myths are usually as shaky as those of their adversaries. As the nation-state loses authority, it is challenged from above and below, and is ideologically demystified, it now has to find explicit grounds for its legitimacy. I am a little puzzled by Sasa’s argument that secession rules out the return to power of the current ruling party or ruling class. Why should ‘ruling classes’ have rights that need to be preserved? As for the ruling party, it can surely compete in the new polity, as the Scottish Labour Party would have done in an independent Scotland. If the citizens of the wider polity feel that they have lost something because of the secession, that is a valid point, which needs to be addressed.

Sasa further argues that secession will result in the exclusion from power of the old political class on the basis of identity. We know that that identity is a fluid concept and most people have multiple identities. Only in times of conflict and insecurity does it become hardened. There is no way in which populations can ever be divided purely on the basis of identity. The European partitions between the two world wars did not fail just because the line was drawn in the wrong place, but because line-drawing was impossible in any case, unless it could include dividing individuals in two. This is why I do not share Brian Girvin’s argument about drawing new boundaries. If Scotland were to vote for independence, inevitably there would be places that had voted the other way. Brian mentions Dumfries and Galloway (adding that it is adjacent to England, but it is not clear whether this is an essential part of the argument). But the principle could presumably be extended down to the village or household. Dumfries and Galloway, after all, is just an administrative unit created in 1975.

It has been proved futile to fit territorial boundaries to match the people or to move the people around to fit boundaries, because we are dealing with constructed and fluid concepts. The only way is to accept the flexibility and complexity both of individual identities and of territory, so that they can be matched in multiple ways. The Northern Ireland settlement is an illustration of this principle, being territorial but with an extra-territorial dimension (as well as intra-territorial power-sharing), allowing people multiple territorial imaginations, with policy spheres also taking multiple territorial configurations. This type of solution, of course, depends on peace and an effective security system since at times of crisis and insecurity people will seize territory and homogenize it, as happened during the disintegration of Yugoslavia.

Sasa asks why the right of the Scottish people to its own state override the democratic majority of the UK. Again there seem to be two arguments; that the demand is recent and it is undemocratic. As political communities are continually been made and remade, we cannot confine the right to those who have been making it forever. As for the democratic clash, there is surely no a priori way of saying which demos is the correct one. This is particularly the case in the United Kingdom, and also arguably in Canada and Spain. These states are conceived by many as unions, not unitary polities and state unity has always been contingent. The right of Scotland to independence has long been accepted de facto (it was home rule within the United Kingdom that was problematic) and was explicitly recognized by none other than Margaret Thatcher and John Major. This is part of the understanding of the state and not a matter of shifting coalitions of individuals. This also gives us another response to Brian’s case of Dumfries and Galloway case. It could not vote to remain in the United Kingdom, because the United Kingdom would no longer exist.

Using the concept of union, we might draw an analogy with the European Union, which since the Lisbon treaty has a ‘secession’ provision. Nobody has ever suggested that, for the UK to leave the EU, it would require the consent of the populations of all the other member states. It has been suggested that Scotland should not be bound by that decision should it vote to stay in, but this is because Scotland is recognized as a self-determining unit. There has been no question of Yorkshire being able to leave the UK in order to stay within the EU. Scotland has been constructed as a community, which over recent decades has become a more important political (as opposed to cultural or historical) reference point. Yorkshire (which does have a history and an identity) has not.

This takes me to Emmanuel’s point about post-sovereignty and the impossibility of sharing sovereignty. I agree that the sovereignty claim is about being the subject of self-determination but in the modern world (and, I would argue, most of history) this can only be done by recognizing the existence of rival claims. Post-sovereignty is not (as is often thought) about the end of sovereignty, any more than post-industrial refers to the end of industry. It refers, rather to the transformation of sovereignty, which is less a fact than a claim. The main post-sovereigntist claim is that legitimacy and original authority come from multiple sources (and often includes historic rights) rather than being monopolized by the state. This by no means precludes membership in a common state, or indeed any particular form of polity. This is not, in fact, something recent but is notable in the national movements of the central empires in the nineteenth century. There is no reason to doubt the sincerity of those who are advocating new forms of statehood, especially when, as small nations in a dangerous word, they have no use for the empty principle of full sovereignty, which they could never defend. In Canada and the United Kingdom, it is not the minority nationalists who have insisted on removing middle ground options from referendums, but the state itself, forcing voters to choose between their second and third preferred options.

These multiple sources of original authority can never be reduced to a single principle and the effort to do so is itself dangerous, in posing a question that cannot be answered. Sovereignty is always based on a myth, in the sense of something that is not necessarily either true or false but is powerful. At times it is necessary to specify where it lies but most of the time it is well to leave unanswerable questions unanswered.

My aim has been to reconcile a theory of self-determination with the dominant constructivist view of national identity. This requires that we avoid reifying the relevant communities, be that the minority nation or the people of the state. I am with Brian in recognizing national claims but insisting that this does not entail an absolute right to independence. Otherwise we as social scientists will end up adopting as analytical categories the very claims that the most absolute nationalists (at both the state and sub-state level) have constructed. I agree with Sasa that we do not need to privilege state-centred solutions when we know so much about the plasticity of both nations and states.