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The right to impede secession

The plebiscitary approach of 27-S, in which the majority parties will proclaim independence if they win, invites further political, legal, and philosophical debate on the right to secession. It will undoubtedly be discussed during the election campaign, but since we have not reached an agreement so far, perhaps it would be better to accept that we find ourselves in an area of reasonable disagreement.

Indeed, once Catalan independence has a (hypothetical) date and its viability and practical effects are discussed, it will also be necessary to ask ourselves what Spain could do to prevent it, should secession have the democratic support of the citizenry. Does the right to a unified State exist? If we concede that the existence of a right to (unilateral) secession is controversial --or there is no agreement on the necessary conditions to exercise it--, then what rights does the affected state have to impede secession when it takes place? In a democracy, are there legitimate mechanisms to prevent it by force?

My point of view is that the general right to secession doesn’t exist. This means that reasonably democratic, liberal, and fair states that accommodate diversity enjoy a presumption in favor of their unity. Essentially, it is an interpretation of the famous UN resolution 2625/1970, which conditions the protection of the territorial integrity of states to their having governments that are fully representative of all their people.

Having said that, in 2015 Catalonia --after a failed process of statutory reform followed by institutional conflicts-- there are good arguments to question the favorable presumption of the status quo in Spain, and to thereby reject the legitimacy of appealing to a hypothetical right to State unity. In other words, if Catalonia’s right to secession is debatable, then Spain’s right to prevent it by force is at least equally arguable, if not more so.

It is obvious that between the recognition of the right to secession, which implies the obligation to respect it and cooperate with the creation of a new State, and the recognition of a right to prevent secession, there is space for politics and geopolitics. All actions by the State in question, or third parties, to discourage secession or increase the risks, costs, and uncertainties thereof, without resorting to force, if secession continues to be the majority will of a territory, belong in this space.

It is worth remembering that Buchanan, who is largely the father of secession theory, devoted a good part of his first book (1991) to discussing what would be legitimate circumstances for a state to use force to prevent the separation of a part of its territory. According to Buchanan, not only is the existence of the right to secession arguable, but there are cases in which the affected State can actively prevent it. But it is curious that this line of discussion has been ignored by the vast majority of secession theorists.

The only explanation that I can find for this development in the theoretical debate over the last 25 years is the following: theorists who deny the existence of a general right to secession admit that it is legitimate when the State subjects part of the population to discrimination, repression, or violation of their individual or group rights. At the same time, however, it turns out that if a territory tries to become independent, even without a "just cause", the state can only use force to prevent it by violating liberal and democratic principles and the accommodation of diversity --a violation that, if it occurs, legitimizes secession a posteriori.  This paradox justifies, in short, why the right to prevent secession doesn’t exist, or why nobody upholds it.

Returning to the here and now, it is clear that the Spanish State is doing --and will continue to do-- whatever it deems most politically effective to discourage support for independence. Panic-mongering in comparable precedents was effective enough to democratically defeat (at least in the short term) secessionist movements. Other measures that have been proposed, such as suspending self-rule, trying or imprisoning pro-independence leaders, outlawing political parties, prohibiting demonstrations, or even declaring a state of siege, either do not have comparable precedents, or cannot be justified by a legally and morally inexistent right to prevent secession. On the contrary, they would legitimize the independence of Catalonia in the eyes of many people who might question whether or not it is justified at present.

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