Regulating secession

Why is secession difficult in well-established democracies? This question was the title of a well-known article by Stéphane Dion, former minister of the Canadian government who had an active role against the secession referendum of Québec in 1995. He was also the author of the three questions submitted to the Supreme Court of Canada that eventually resulted in the Clarity Act of 2000. Dion contended that in the context of well-established democracies the conditions for secession are unlikely to occur: the host state does not inspire fear to the secessionist unit as it is not hostile to the existence of minority nations, and on the other hand secession does not generate confidence enough among potential secessionists because of the uncertainties of independence. But Dion's approach and generally the theories emphasizing the difficulties of secession in democratic contexts usually understate the concept of 'well-established' and, more importantly, of 'fully-fledged' democracies.

Theories of secession have usually put the burden of proof on the secessionist unit and not on the host state. The debates have focused on who is entitled to the right to self-determination and if this include the right of creating a new state. Restrictive theories consider secession as the last remedy to solve problems of justice such violent and ilegal occupation of a formerly independent territory or to severe threatens of ethnic cleansing. Other theories contend that an association of free individuals can decide to form an independent state or that certain kinds of collectivities are entitled to exercise the right of self-determination, but generally speaking all of them focus on the requirements that have to be met by the potential secessionist unit to have a legitimate claim for secession.

However, the burden of proof must be put too on the state's response to secessionist claims. A fully-fledged democracy can not reject the possibility of a constitutional regulation of secession. For a democracy to be qualified as such, constitutional and legal procedures of consultation must be established to give voice to the citizenry, so they can express their political preferences even if this entails a process of secession. In fact, unilateral secessions usually indicate a democratic failure so the constitutional regulation of secession can protect the existing state preventing the legitimization of unilateral secession for those cases of long, unsolved demands of self-government, as it channels these demands through democratic consultation. The constitutional regulation of secession must be on the one hand difficult enough to prevent political opportunism, but on the other hand it must also establish fair requirements to allow well-stablished national movements to express democratic demands of self-determination.

Therefore, the regulation of secession must not only focus on the claims for self-government or self-determination by the secessionist unit but also on the democratic response by the state. It is in fact a requirement for a state to qualify as a fully-fledged democracy, and, in the case of Spain, it is probably the main challenge that has not accomplished yet, thirty years after the end of the Francoist regime.