Secession and Territorial Integrity: the case of Ethiopian Constitution

The Constitutional Right of Secession: A Recipe for National Disaster or a Tool for Protecting the Territorial Integrity of a Multi-Nation State?



by Tesfaye Habisso



No other topic has ever been as controversial and as sensitive to and among the political elites and the laymen alike in Ethiopia since 1991 as the issue of constitutionalizing the right of secession, that is, inserting a provision dealing with the right of national self-determination up to and including secession in the Transitional Period Charter of 1991 and the FDRE Constitution of 1995.

Many academicians and critics have vehemently criticized and condemned the ruling party for entrenching this right in the FDRE Constitution and for allowing Eritrea to declare its unilateral independence without the consent of the whole people of Ethiopia in a country wide referendum, thus losing access to two very important sea ports--Assab and Massawa.

Many opponents of the ruling party’s political programmes accused it of a sinister policy of “divide and rule” and conniving to facilitate the disintegration of the multi-ethnic empire state, wild accusations that have proved utterly false and misguided bearing in mind the stark reality and practice of the past 17 years under the EPRDF.

A few major opposition political parties have, in fact, made it their priority political agenda ever since Eritrea’s divorce and vowed to scrap this provision from the Constitution if they ever succeeded in snatching state power from the ruling party by gaining a majority victory in the legislative elections of the country that are held every five years by the National Electoral Board of Ethiopia (NEBE), many of them still claiming Eritrea as part and parcel of the Ethiopian body politic and thus not recognizing it as a fully fledged independent neighbouring state.

To the dismay of many ideologues of Ethiopianism who still clamor for the perpetuation of the age-long centralist and assimilationist policy of the past successive monarchical regimes, the FDRE Constitution recognizes the right of national self-determination of the more than eighty ethnic groups; encourages them to use their own languages in schools as well as in local courts, and to promote their cultures and customs, and vests sovereign power in nine regional states with the ability to exercise their sovereign power, at least rhetorically, in much the same way as any free and independent sovereign states anywhere in the world.

Among the most important of the constitutional rights given to the nine sovereign states is the right to secede. Article 39(1) of the Ethiopian Constitution states that “every nation, nationality and people in Ethiopia has the unconditional right to self-determination, including the right to secession.” Article 39(5) of the FDRE Constitution defines a nation, nationality or people as:

A group of people who have or share large measure of a common culture or similar customs, mutual intelligibility of language, belief in a common or related identities, a common psychological make-up, and who inhabit an identifiable, pre-dominantly contiguous territory.”

Thus, it is not just the nine sovereign regional states that enjoy this right. Rather, every minority ethnic group in each of the nine states has the right of secession. In addition to expressly acknowledging the right of secession itself, the Ethiopian Constitution contains the necessary procedures to effect secession in the constitutional text under Article 39(4) (e).


A Two-thirds vote by the Legislative Council of the nation, nationality, or people desiring secession is required before the issue is put to a referendum organized by the Federal Government and voted on by the seceding population. Once the referendum has passed in favour of secession, the terms of secession are negotiated, including the division of assets, which is “effected in a manner prescribed by law.” Territorial borders are negotiated between the seceding ethnic state and the non-seceding ethnic state.

If agreement on borders between the states cannot be reached, the Federal Government decides the issue based on the settlement patterns and wishes of the peoples involved.

Whatever the case, there are yet a number of pertinent questions that should be asked by any critical politicians, lawyers, social theorists, philosophers and laymen alike in understanding the theoretical justifications for entrenching the right of secession in the constitution of a democratic state.

Should there even be any constitutional right of secession in the first place? If so, what should be the nature of such a right? Should the right be unilateral and unlimited? Should the right be heavily qualified so that constitutional democracies can use the rule of law to control the secession process through consensual negotiation? What is the true nature of a constitutional right of secession? Is it substantive or procedural?

Is the right explicit or implicit? Additionally, how does the existence or non-existence of a constitutional right of secession affect the behavior of centralized state actors and their secessionist counterparts? Finally, is the ultimate motive or purpose of constitutional secession aimed at effecting the political and legal dissolution of a multinational state and its disintegration into its component parts thus creating numerous sovereign mini-ethnic states, as some doomsayers fret to ‘preach’, or in fact crafting a strategy deemed at safeguarding and guaranteeing the territorial integrity of the state?

These are indeed some vexed questions that must be duly tackled and properly answered to convince all pundits, historians, philosophers, politicians, lawyers, economists, and the wider public at large as to the political appropriateness and acceptability of entrenching the right of secession in a country's basic document: the Constitution.


Liberal Democrats Against Constitutional Secession

Interestingly enough, liberal democratic political theorists are split on the issue of constitutionalizing secession. By understanding the liberal democratic theories of constitutionalizing secession, we can better understand the nature and effectiveness of the few constitutional rights and procedures governing secession that exist in the world today.

We start with noted constitutional law scholar Cass Sunstein, who argues against granting any constitutional right of secession. According to Sunstein, a right of secession would promote strategic behavior by political subunits that are supposed to obediently carry out their democratic burden of providing the state with the “benefits” necessary to carry out distributive justice.

For instance, economically rich regions like Padania in Northern Italy or the Canadian province of Alberta would try to avoid the hard work of creating a healthy democracy by not supplying the democratic state with the economic resources necessary to dispense justice to the citizenry.

For Sunstein, the purpose of constitutional government is to promote democratic participation based on compromise, cooperation, and deliberation. Specifically, Sunstein believes that constitutionalizing secession would threaten “constitutional pre-commitment strategies”— a term that refers to the set of rights entrenched within a constitution designed to insulate minority groups from majoritarian politics. The constitutional pre-commitment strategies that Sunstein mentions include:

· provisions like the right to free speech and the right to vote

which are designed to ensure that majority rule does not become

excessive;

· a healthy federalism that allows private liberty to flourish;

· structural provisions that allow for a healthy political “division

of labor,” presumably through the separation of powers between

the three branches of government;

· provisions that take morally sensitive issues such as abortion

away from the political process; and

· provisions that avoid “collective action problems or prisoners’

dilemmas” that occur when state units in federal polities like

the United States act in their own self-interests to the detriment

of the nation as a whole (Sunstein cites the federal enforcement

of the Full Faith and Credit Clause and the Commerce Clause

as examples of effective solutions to these collective action

problems).

The idea here is to use the constitution in ways that both protect and properly constrain the excesses of majoritarian democratic politics. For Sunstein, the mere introduction of a constitutional right of secession would mean a disabling or disruption of the democratic process.

Sunstein worries that “if the right to secede exists, each subunit will be vulnerable to threats of secession by the others.” The result of institutionalizing such a right would be political instability and chaos because the democratic polity would be so bogged down with the prevailing secession issue that day-to-day public policy formation would be needlessly obstructed.

For libertarians interested in a world composed of a multitude of sovereign political entities of all sizes and forms, such a state of affairs could conceivably lead to the dissolution of the central state’s authority and the emergence of a number of sovereign entities covering a territory where only one centralized state previously stood. However, for a liberal democrat like Sunstein, the occurrence of multiple secession movements among subunits of a larger democratic state resulting from a constitutional secession right would spell political disaster. Given the disparaging effects on democratic deliberation of constitutionalizing a right of secession, Sunstein concludes that the most effective way to deal with secessionist concerns is to rely primarily on the internal mechanisms provided by constitutional democracy: “federalism, checks and balances, entrenchment of civil rights and civil liberties, and judicial review.”



Liberal Democrats For Constitutional Secession


Unlike their fellow liberal democrat Sunstein, Rawlsian philosophers Wayne Norman and Daniel Weinstock argue in favor of constitutionalizing the right of secession. They agree with Sunstein that secession from democratic states should be avoided if at all possible because they believe that most Western-style democracies are already “reasonably just.” If most democratic states do a reasonably good job of Rawlsian distributive justice, as liberal democrats claim, then no moral reason exists to justify the secession of any groups of individuals from the modern democratic state.

Norman admits that Sunstein “is absolutely right about the pernicious effects of secessionist politics on democratic deliberation and political stability.” He writes:

The issue here is not whether secessionist politics is bad for

democracy and justice, but rather, what can be done through

the constitutional engineering of a multinational state to

take away the incentives for minority leaders to engage in

secessionist politics.

Here, Norman gives us the real reason why liberal democrats would ever consider inserting a right of secession into a democratic constitution in the first place. It is not to grant a group of citizens, who no longer consent to the authority of their government, a substantive right of external exit for the purpose of establishing a new political jurisdiction. Rather, a constitutional secession right is meant to act as a procedural means of forcibly keeping secessionists within the prevailing territory of the democratic state. Working with the assumption that secessionists are better off staying within the existing reasonably just democratic state, Norman makes a number of arguments in favor of constitutionally entrenching a secession right. First, Norman favors designing a secession procedure in such a way that it serves as a “choking mechanism” for secession. Such choking mechanisms include the enforcement of minority rights within a democratic state and the brutal suppression of minority ethnic secessionist leaders in non-democratic, dictatorial states. The most common choking mechanism would be the establishment of a high threshold supermajority requirement, most likely a two-thirds vote in a secession referendum. Making the “yes” vote requirement in a secession referendum higher than a simple majority would serve to deter secessionist movements with sub-50% popular support from proceeding further along the secessionist path. It would also ensure that only those secessions that are truly justified, such as those that involve the violation of human rights or discrimination against a cultural or ethnic group and supported by the majority of the seceding population, are allowed to prevail. Here, Norman has in mind “vanity secessions,” which he defines as “secessions by groups lacking just cause.” As an example of this, one could think of a group of relatively well-off citizens within a democratic state who no longer consent to being economically exploited (e.g., taxed heavily) and who vote to secede and form their own government. This type of secession is considered vain by liberal democrats because these rich citizens are selfishly thinking only of themselves and not of those others living within the “reasonably just” democratic state, who depend on receiving (from the rich citizens) the economic benefits of distributive justice. Second, Norman argues that constitutionalizing a right of secession serves to ground secession in the rule of law, thereby reducing the chance of violence and disruption to the democratic process. Otherwise, if there were no constitutional rules in place governing secession, “a victory for secessionists in a referendum amounts to little more than the strengthening of the secessionists’ hand in a game of power politics.”

In other words, we do not want secessionists to get an advantage over the central government in claiming the legitimacy to secede in a situation in which there are no legal rules in place to govern secession. Thus, it is better to have constitutional rules in place for secession than to have no rules at all.

Another argument Norman makes is that the existence of a secession clause would be “evidence that the state is united by consent and not force.” Here, Norman is essentially acknowledging the weak foundation of consent upon which the existence of the democratic state currently rests. He admits that:

Even in the democratic world, almost none of the existing

national minorities ever gave their initial, democratic assent

to their membership in the larger state; and few have

had a formal opportunity to assent since.

Instead of concluding that a constitutional right of secession should be a right used by non-consenting minority groups to correct the past injustice of non-consent, Norman instead justifies the legal right to secede as a tool to strengthen the seceding group’s consent to the existing democratic state. The logic here seems to be, “we, the benevolent central government, have given you, the secessionists, the legal right to secede; now that you have this right, you live in a more consensual democratic state than you did before with greater rights protection than you had before; therefore, you have less legitimate reason to leave the democratic state.”

Operating under the same Rawlsian liberal democratic idea of

distributive justice and guarantees of minority rights as Norman, Daniel Weinstock also favors a qualified, procedural right of secession consisting of a number of procedural hurdles that secessionists would have to meet in order to successfully secede. Weinstock’s reasons for a legal right to secede are both pragmatic and moral. His pragmatic approach treats secession in the same way one might treat prostitution or drug use: It is a morally questionable vice that people are going to engage in regardless of whether the act is legalized or not, so it is better to legalize secession, in the same way it would be better to legalize prostitution or marijuana use, because the government can regulate the behavior. Legalizing secession would present secessionists with “a cold and lucid cost/benefit analysis” of seceding versus remaining in the existing state, giving them the hard truth about the tremendously difficult legal obstacles they would have to clear before they could successfully secede. Weinstock, in making his moral argument for constitutional secession, relies on a modified version of the Rawlsian original position: Participants to a constitutional contract know they represent a national group within a multination state, but they don’t know if they are the majority or minority national group. In other words, the participants are “placed behind a national veil of ignorance.” Not knowing on which side they will fall, constitutional participants will want to avoid two extremes. On the one hand, they would not want to make secession too easy, because they would be foregoing advantages of democratic cooperation (i.e., redistribution of wealth by the state). On the other hand, they would not want secession made too hard, because if they are actually oppressed or discriminated against, they would not be able to legitimately leave the remaining state. Therefore, a balanced right of constitutional secession would be desired, which would necessarily entail the imposition of procedural hurdles. Some of the procedural hurdles that Weinstock has in mind include mandatory waiting periods between referenda and mandatory waiting periods between referendum calls and the actual vote, in order to prevent impulsive, public opinion- driven secessions.

It is curious that liberal democrats are split on whether to constitutionalize a right of secession. Sunstein argues against a constitutional right of secession because he fears that a legal secession right could be used to sabotage the democratic process, whereas Norman and Weinstock argue in favor of legalizing secession precisely because it could serve to sabotage the secession process itself. No matter how liberal democrats choose to argue the merits or drawbacks of constitutional secession, both lines of arguments are derived from the same premise: preserving the territorial integrity of the world’s constitutional democracies.

As mentioned previously, Buchanan perceives the right of self-determination to include the right of secession only in cases in which human rights have been violated or a group of individuals has been severely discriminated against by the state. Otherwise, a group can only exercise the right of self-determination through gaining greater political autonomy within the inner workings of the democratic state. Thus, for Buchanan, under international law, the preservation of the territorial integrity of constitutional democracies trumps any exercise of self-determination.

The historical attempts from the former USSR to China to Burma to legalize the right of secession in national constitutions show that secession rights have often been used as a tactic to attract smaller sovereign ethnic and national groups into a larger political union for the purpose of enjoying perceived economic and social benefits. However, once the political union was attained, the right of secession was often de-legitimized, either through practical politics or legal repeal. In cases in which the right of secession was exercised, the result was most often a war by the central state to preserve political union. In those cases in which secession occurred peacefully, it was because the central state accepted the reality and legitimacy of secession and negotiated a peaceful transition through established constitutional means.

However, the vast majority of the world’s sovereign states do not recognize any right of secession in their domestic constitutions. According to a 1996 study conducted by Canadian law professors Patrick Monahan and Michael Bryant, 82 of the 89 constitutions that were examined did not have any provisions allowing for the secession of any part of its people or territory. Twenty-two constitutions expressly affirm the maintenance of the state’s territorial integrity, using terms like “indivisible,” “inalienable,” and “inviolable.” Some constitutions, like those of Cameroon, the Ivory Coast, and Rwanda, even go so far as to prohibit any constitutional amendment that would adjust the state’s territory.

Monahan and Bryant found seven constitutions, both present and past, which contained or do contain procedures for constitutional secession: Austria, Ethiopia, France, Singapore, St. Kitts and Nevis, the European Union and Canada.





PROBLEMS WITH THE MODERN

CONSTITUTIONAL RIGHT OF SECESSION

What should be clear from existing constitutional provisions for secession is that constitutional or consensual secession does not imply an absolute, unilateral right of secession. A unilateral declaration of independence (UDI) is a declaration of intent to separate from the existing state for the purpose of creating an independent sovereign state. Such a declaration is often supplemented with a secession referendum to give the secession added legitimacy. Two key aspects of a UDI are: 1) it is illegal under virtually all domestic constitutions and international law; and 2) it is executed without the consent of, or negotiation with, the remaining state.

Judging from the various constitutional provisions for secession in existence, almost none of them allow for unilateral secession, the exception being St. Kitts and Nevis. As mentioned previously, the St. Kitts and Nevis constitution provides that a referendum and legislative approval for secession be limited only to the seceding unit (the island of Nevis, in this case). The St. Kitts and Nevis constitution also settles territorial issues ex ante. This provision is fairly straightforward since the secession of one island from another is a simple territorial matter.

Granted, it would be asking a lot to expect larger multinational democratic states to insert ex ante territorial provisions in the event of a secession, which would involve carving territorial borders for a newly seceded state out of a contiguous geographic landmass—a far cry from a two-island situation. However, as the case of St. Kitts and Nevis shows, an ex ante constitutional provision for post-secession territorial frontiers is conceivable if the political will exists to implement such a provision.

Aside from St. Kitts and Nevis, in all other cases where secession is constitutionally recognized, constitutional secession entails not just a referendum vote but also a negotiated settlement. This is true of Austria, Singapore, Ethiopia, and Switzerland. In the case of Canada, a formal constitutional amendment is an additional requirement necessary to effect provincial secession. Thus, we notice that the results of secession referendums in most cases are meant to be merely consultative, not binding. Monahan and Bryant explain why this is the case:

It is impossible to generalize about the effect of a secession referendum without resort to a nation’s constitution. Basically, if it is silent on the subject, a referendum is consultative, if only because there is no legal basis for making it binding. Thus, most referendums are consultative in the sense that the legal status quo remains until a resulting negotiation and eventual legislative measure addresses the referendum result. As one study concludes, “binding referendums are rare in parliamentary democracies, and are best suited to countries with a tradition of direct democracy, such as Switzerland.”

In its opinion on Quebec secession, the Supreme Court of Canada said this on the effect of referenda:

Although the Constitution does not itself address the use of a referendum procedure, and the results of a referendum have no direct role or legal effect in our constitutional scheme, a referendum undoubtedly may provide a democratic method

of ascertaining the views of the electorate on important political questions on a particular occasion.

In its summarizing remarks, the Court reiterated its view on the legal effect of a secession vote:

Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation. The democratic vote, by however strong a majority, would have no legal effect on its own.

The reason why most referenda on issues like secession are treated by constitutional democracies as consultative is easy to see: It is in every state’s self-interest to maintain its territorial integrity. Indeed, under current international law, the preservation of a state’s territorial integrity is the overarching value, subject only to strict exceptions. For instance, legal scholar Diane Orentlicher notes that the 1960 United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples allows for the secession of territory only for purposes of de-colonization, while otherwise preserving the territorial integrity of existing states. Orentlicher adds that the 1970 United Nations Declaration on Principles of International Law Concerning Friendly Relations “hinted at the possibility that established states might forfeit their right to territorial integrity if they abused the rights of minorities.”

Finally, international law scholar James Crawford confirms that “a state which is governed democratically and respects the human rights of all its people is entitled to respect for its territorial integrity.”

The treatment of referendum results as consultative rather than binding allows the remaining state to control the secession process by adding extra hurdles, such as the attainment of a negotiated agreement regarding the terms of secession. Once the negotiated agreement is attained, the actors of the remaining central state will allow the territorial and jurisdictional status quo to be changed. At best, a consultative referendum vote in favor of secession may give the seceding group the legitimacy it needs as a source of leverage in the negotiation process with the central state government, but the legitimacy of even an overwhelming “yes” vote may not be enough to clear the hurdle of negotiation.

In its opinion on Quebec secession, the Supreme Court of Canada says:

No one can predict the course that such negotiations (concerning secession) might take. The possibility that they might not lead to an agreement amongst the parties must be recognized. . . While the negotiators would have to contemplate the possibility of secession, there would be no absolute legal entitlement to it and no assumption that an agreement reconciling all relevant rights and obligations would actually be reached.

Thus, secessionists would obviously prefer a binding referendum vote which would have the legal effect of changing the status quo without the need for subsequent negotiation with the central state government. It is apparent from looking at existing constitutional provisions for secession that the central governments charged with the creation of these rules and procedures designed them in such a way as to make secession extremely difficult or virtually impossible. Though the right of secession may exist in principle, there is little expectation on the part of actors within political institutions that such a right would actually be exercised in practice. For instance, liberal democratic philosophers Wayne Norman and Daniel Weinstock favor the legalization of secession in order to prevent secession from occurring, by means of shutting down the political momentum of secessionist movements. In this way, secession is made more costly to the seceding unit, thereby making it cheaper to accommodate the seceding unit with offers of greater political autonomy within the larger state. Norman, in particular, argues in favor of creating a constitutional secession clause to act as a choking mechanism for secessionist politics.



CONCLUSION



We notice from history and the present day that when secession is treated as a constitutional right, it is often subordinated to the immediate political interests of those who are faced with secessionist movements or threats of secession.

Today, the issue of whether the right of secession should be constitutional is determined largely by a Hobbesian conception of political order that requires the existence of nation-states characterized as coercive territorial monopolies. Liberal democracy, as the dominant political paradigm, depends on the structure of the centralized state as the necessary means to carry out its values of egalitarianism and distributive justice. The claim made by liberal democrats is that constitutional democracy is the best method to guarantee the universal and equal human rights of individuals and groups, as well as free entry for all in the arena of democratic politics.

Since democracy constrained by constitutional rules is the best available system by which to protect human rights, any individuals within a democratic state who wish to secede have no moral cause to do so because they already find themselves living in a perfectly or reasonably just society. The influence of the Hobbesian view of government on liberal democratic thought leaves little room for a right of secession. Since individuals, by entering into a social contract, consent to rule by a sovereign for collective security and justice, any action to withdraw from or revoke this contract would lead to anarchy. Herein lies the challenge for liberal democrats: how to incorporate some legal provision for secession when the Hobbesian premise of democratic governance does not allow for it.

However, facing this challenge on a theoretical level is moot because the political reality is that secessionist movements do exist, even in liberal democratic states that theoretically should not be spawning such movements. Liberal democrats are forced to deal with the issue of secession despite the existence of the “perfectly just” democratic state. They have come down both for and against making a right of secession constitutional, while maintaining their common goal of suppressing or preventing secession. Many of the constitutional rights and procedures for secession that exist in nation-states today are so heavily qualified and limited that the actual implementation of constitutional secession of people and territory is almost certain to fail.

Further, the existence of an explicit constitutional right of secession gives no assurance that secession could be practically achieved in a lawful and peaceable manner. First, the central government can always choose to use force against secessionists to prevent the withdrawal of people and territory despite the existence of a constitutional secession right. The American War Between the States and the USSR provide historical examples of this. Second, even if constitutional secession is adhered to, the constitutional provisions can be designed and influenced by the central government in such a way that the secession of a political subunit with constitutional status, like a province or state, is made virtually impossible. Thus, what we realize by looking at the political theory and history of constitutional secession is that de jure secession may not necessarily be a superior strategy to de facto secession.

All in all, it is safe to assert that inserting the right of secession in a constitution by a democratic state is not at all aimed at destroying a multi-nation state but a tool used to protect the territorial integrity of the state in question. After all, a genuine and voluntary union of diverse peoples aimed at creating a strong political and economic community based on equality and justice is not, and cannot, be like a taxi where any one ethnic group can jump in and out at any time it wishes to do so. The greater public good of the entire nation and the territorial integrity of the state is the number one priority for any democratic and legitimate/just state that abides by international law and respects human rights, civil and political freedoms, and upholds the rule of law.